| People v Tubbs |
| 2014 NY Slip Op 01479 [115 AD3d 1009] |
| March 6, 2014 |
| Appellate Division, Third Department |
| The People of the State of New York,Respondent, v Richard C. Tubbs, Appellant. |
—[*1] Kirk O. Martin, District Attorney, Owego (Irene C. Graven of counsel), forrespondent.
Lahtinen, J.
Appeal from a judgment of the County Court of Tioga County (Sgueglia, J.),rendered December 2, 2011, upon a verdict convicting defendant of the crime of rape inthe third degree.
Defendant, who was then 24 years old, allegedly had sexual intercourse with a then15-year-old female in December 2009, February 2010 and March 2010. He was indictedon three counts of rape in the third degree. A jury found him guilty of the first countarising from the December 2009 incident, but acquitted him of the other two counts.Defendant's CPL article 330 motion to set aside the verdict upon the ground of, amongother things, juror misconduct was denied following a hearing. County Court sentencedhim to eight months in jail. Defendant now appeals.
We consider first defendant's arguments that the verdict was not supported by legallysufficient evidence and that it was against the weight of the evidence. "In evaluating thelegal sufficiency of the evidence, we view it in a light most favorable to the People andwill not disturb a verdict as long as there is a 'valid line of reasoning and permissibleinferences which could lead a rational person to the conclusion reached by the jury' " (People v Blond, 96 AD3d1149, 1151 [2012], lv denied 19 NY3d 1101 [2012], quoting People vBleakley, 69 NY2d 490, 495 [1987]). The ages of defendant and the victim wereestablished, and the victim testified regarding her relationship with defendant, includinghaving sexual intercourse with him in his bedroom at the home where he resided duringthe evening of December 5, 2009 when several friends were in the [*2]home for a party. Two party attendees testified toaccidentally walking in on defendant and the victim while they were engaged in sexualintercourse in his bedroom that evening. The proof was legally sufficient.
In our weight of the evidence review, we "must, like the trier of fact below, 'weighthe relative probative force of conflicting testimony and the relative strength ofconflicting inferences that may be drawn from the testimony' " (People vBleakley, 69 NY2d at 495, quoting People ex rel. MacCracken v Miller, 291NY 55, 62 [1943]). Defendant produced several witnesses, mostly family members, whostated that he had left the party before the time when the victim claimed that the sexualintercourse had occurred. His witnesses challenged other aspects of the People's proof,including whether the two individuals who testified that they had observed the sexualactivity were actually at the party on the evening in question. Where, as here, credibilityissues are presented, "deference is accorded to the fact-finder's opportunity to view thewitnesses, hear the testimony and observe demeanor" (People v Romero, 7 NY3d633, 644 [2006] [internal quotation marks and citation omitted]). After reviewingthe proof in the record and finding no reason to disregard the jury's credibilitydeterminations, we are unpersuaded that the verdict was against the weight of theevidence.
Defendant contends that County Court gave an improper definition of reasonabledoubt. The focus of defendant's argument appears to be comments by the court duringvoir dire. However, when read in context, those comments were directed at informingpotential jurors that the standard was not one of absolute certainty and ensuring that, ifselected, they would follow the court's instructions on reasonable doubt. The chargeeventually given, without objection from counsel, provided in pertinent part: "Areasonable doubt is an actual doubt. In other words, you know you have a doubt. Youdon't have to look for it. You know you have a doubt that you're conscious of havingafter going over the entire case in your minds. . . . It is such a doubt as areasonable person would entertain after careful and honest review and consideration ofall of the evidence or lack of the evidence. Since it is a reasonable doubt, it is a doubt forwhich a reason could be given." This adequately explained the concept to the jury(see People v Antommarchi, 80 NY2d 247, 251-252 [1992]; People vPochily, 255 AD2d 695, 696 [1998], lv denied 93 NY2d 856 [1999]; seealso CJI2d[NY] Reasonable Doubt).
The record does not establish that defendant's statutory right to be present at allmaterial stages of the trial was violated during jury selection (see CPL 260.20;People v Antommarchi, 80 NY2d at 250). "Although the right to be present atsidebar questioning need not be preserved by objection, a defendant alleging anAntommarchi violation must nevertheless present an adequate record forappellate review" (People vVelasquez, 1 NY3d 44, 47-48 [2003] [citations omitted]; see People v Abdullah, 28AD3d 940, 941 [2006], lvs denied 7 NY3d 784 [2006]). The interview ofjurors in the robing room was put on the record and defendant was present for suchquestioning. Defendant asserts that his right was violated when, immediately after alunch recess, a sidebar conversation occurred between the attorneys and County Court atwhich the court stated that defendant's presence was not necessary. However, there isnothing in the record indicating that this conversation implicated in any fashion a matterwhere his "presence could have [had] 'a substantial effect on [his] ability to defendagainst the charges' " (People v Velasquez, 1 NY3d at 47, quoting People vSloan, 79 NY2d 386, 392 [1992]; see People v Roman, 88 NY2d 18, 25-27[1996]).
Defendant failed to preserve for our review by a proper objection at trial hisallegations [*3]that County Court gave an instructionduring voir dire regarding his right not to testify despite no request for the instruction atthat time (see People vMendez, 71 AD3d 696, 696 [2010], lv denied 15 NY3d 753 [2010]),that the court's instructions as to juror note-taking were inadequate (see People vDexheimer, 214 AD2d 898, 902 [1995], lv denied 86 NY2d 872 [1995]),that the court failed to repeat its admonishments to the jury at all recesses (see People v Williams, 46AD3d 585, 585 [2007], lv denied 10 NY3d 772 [2008]), and that theprosecutor made an incorrect statement of law during closing (see People v Molano, 70AD3d 1172, 1176 [2010], lv denied 15 NY3d 776 [2010]). We find noreason to exercise our interest of justice jurisdiction as to these issues.
After the trial and before sentencing, defendant moved pursuant to CPL 330.30 (2) toset aside the verdict asserting, among other things, that juror No. 12 had looked up theterm "reasonable doubt" on the Internet, discerned a less demanding definition andshared such definition during deliberations. "A motion to set aside a verdict under CPL330.30 (2) may be granted where it is shown that improper conduct by a juror prejudiceda substantial right of the defendant" (People v Gonzales, 228 AD2d 722, 722[1996], lv denied 88 NY2d 1021 [1996]; see People v Irizarry, 83 NY2d557, 561 [1994]; People v Clark, 81 NY2d 913, 914 [1993]). The trial court is"vested with discretion" in deciding the motion, and its factualfindings—including credibility determinations—typically are upheld "if theyare supported by evidence in the record" (People v Rodriguez, 100 NY2d 30, 35[2003]; see People vWilson, 93 AD3d 483, 485 [2012], lv denied 19 NY3d 978 [2012]; People v Douglas, 57 AD3d1105, 1106 [2008], lv denied 12 NY3d 783 [2009]).
County Court held a hearing on the motion and one juror testified in a manneressentially consistent with defendant's contentions. However, other jurors testified that,although juror No. 12 had a piece of paper to which she briefly referred one time, thepaper was not passed around and it had no impact on deliberations. Six more jurors wereready to testify, but did not do so after defendant acknowledged that they all wereprepared to state that the piece of paper did not affect deliberations. Juror No. 12 testifiedabout the minimal use, made solely for her own benefit, of the Internetdefinition.[FN*]County Court determined that the juror who recalled that juror No. 12's note played animportant role in deliberations lacked credibility, and the court found that the outsidedefinition did not affect any other juror. Deferring to the court's credibility determination,its finding that the note had no impact is supported by the record.
The remaining arguments have been considered and are unavailing.
Peters, P.J., Stein and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.
Footnote *: She produced the paperat the hearing and, although not included in the record, it was received as an exhibit andwas described by County Court in its decision as a four-by-six-inch piece of paper with"Beyond a reasonable doubt" written on top, and underneath was written: "There couldbe no reasonable doubt, in the mind of a reasonable person, that the Defendant is guilty."