| People v Miller |
| 2013 NY Slip Op 08294 [112 AD3d 1061] |
| December 12, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vJeffrey Miller, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), forrespondent.
Lahtinen, J. Appeal from a judgment of the Supreme Court (Lamont, J.), renderedNovember 19, 2010 in Albany County, upon a verdict convicting defendant of the crimeof criminal sexual act in the first degree (three counts).
Defendant solicited sex for money from the victim, a prostitute. However, once sheentered his car, instead of paying, he allegedly took her to a secluded area in the City ofAlbany where he physically forced her to engage in various sexual activities. Upon beingreturned to the area where she had been picked up by defendant, the victim ran into thestreet and flagged down police, reporting what had occurred. Defendant was questionedseveral times and gave conflicting versions of events to police. After the originalindictment was dismissed with leave to re-present, defendant was eventually indicted ontwo counts of rape in the first degree and four counts of criminal sexual act in the firstdegree. The indictment alleged that he had used forcible compulsion to require the victimto engage in three separate sexual acts (oral, anal and vaginal sex) in his car and thenlater the same three acts outside his car. A jury convicted him of three counts of criminalsexual act in the first degree, for the anal and oral acts occurring inside the car and theoral act occurring outside the car. He was acquitted of the remaining counts. Defendantwas sentenced, as a second violent felony offender, to 25 years in prison plus postreleasesupervision. Defendant now appeals.[*2]
We are unpersuaded by defendant's contentionthat the People deprived him of a fair trial by presenting a theory at trial that varied fromthe theory alleged in the indictment. The People cannot alter at trial the theory charged inthe indictment (see People v Grega, 72 NY2d 489, 496 [1988]; People v Ardrey, 92 AD3d967, 970-971 [2012], lv denied 19 NY3d 861 [2012]). The forciblecompulsion element of the crimes alleged in the indictment was based upon the use ofphysical force (see Penal Law § 130.00 [8] [a]) and not upon threats(see Penal Law § 130.00 [8] [b]). Although Supreme Court precludedmany threatening comments that the People sought to introduce, defendant argues thatthe court erred in allowing the victim to state that she saw a knife clipped to defendant'sbelt. Neither this proof nor the victim's testimony regarding comments made bydefendant while engaged in certain sex acts or when dropping her off after the incidentresulted in an altering of the People's theory. Moreover, Supreme Court limited its chargeto the jury regarding the element of forcible compulsion to only physical force, and didnot include threats in the charge.
Defendant next asserts that the second count of the indictment, based on oral sexoccurring inside the car, should have been dismissed as duplicitous. A count thatproperly charges one criminal act may nonetheless be "duplicitous if the evidence makesplain that multiple criminal acts occurred during the relevant time period, rendering itnearly impossible to determine the particular act upon which the jury reached its verdict"(People v Dalton, 27 AD3d779, 781 [2006], lv denied 7 NY3d 754 [2006]). Although the second countcharged one criminal act of forced oral sex occurring in the car, the victim testified attrial that she performed oral sex upon defendant in the car both immediately after beingdirected into the rear seat and then again following anal sex in the car. Duringdeliberations, the jury sent a note inquiring as to which oral act the second count referred.Supreme Court, after reviewing the victim's grand jury testimony and consideringextensive arguments from the parties, instructed the jury to limit its consideration to thelatter act. Supreme Court thus removed any confusion as to the act that the jury shouldconsider with respect to the crime charged in the second count, and it did not err in themanner in which it addressed the issue (see People v Alonzo, 16 NY3d 267, 271 [2011]).Moreover, contrary to defendant's contention, the court handled the jury's questionconsistent with the governing statute (see CPL 310.30; see also People v Kisoon, 8NY3d 129, 133-134 [2007]).
The verdict was not against the weight of the evidence. Since a different verdictwould not have been unreasonable, we "must, like the trier of fact below, weigh therelative probative force of conflicting testimony and the relative strength of conflictinginferences that may be drawn from the testimony" (People v Bleakley, 69 NY2d490, 495 [1987] [internal quotation marks and citations omitted]; see People v Danielson, 9NY3d 342, 348 [2007]). We accord deference to " 'the fact-finder's opportunity toview the witnesses, hear the testimony and observe demeanor' " (People v Romero, 7 NY3d633, 644 [2006], quoting People v Bleakley, 69 NY2d at 495). Althoughmany witnesses testified at trial, the verdict rested in large measure on the jury'sassessment of the credibility of the victim. Her testimony sufficiently established each ofthe elements of the crimes of which defendant was convicted. We note in such regardthat some aspects of her testimony were corroborated by other proof, and the statementsthat defendant gave to police evolved in a manner that did not reflect well on thecredibility of his version of events. Upon weighing and considering the proof in therecord and deferring to the jury's credibility determinations, we find that the verdict wassupported by the weight of the evidence.
Peters, P.J., Spain and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.