| People v Charles |
| 2015 NY Slip Op 00403 [124 AD3d 986] |
| January 15, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vAlan Charles, Also Known as Perp, Appellant. |
John Ferrara, Monticello, for appellant, and appellant pro se.
James R. Farrell, District Attorney, Monticello (Katy Schlichtman of counsel), forrespondent.
Clark, J. Appeal from a judgment of the County Court of Sullivan County (Labuda,J.), rendered October 13, 2011, upon a verdict convicting defendant of the crimes of rapein the first degree, criminal sexual act in the first degree, sexual abuse in the first degree,rape in the third degree, criminal sexual act in the third degree, sexual abuse in the thirddegree, endangering the welfare of a child (two counts) and unlawfully dealing with achild in the first degree (two counts).
As the result of an incident wherein he and an accomplice provided alcohol to thevictim and sexually assaulted her, defendant was charged in an indictment with rape inthe first degree, criminal sexual act in the first degree, sexual abuse in the first degree,rape in the third degree, criminal sexual act in the third degree, sexual abuse in the thirddegree, two counts of endangering the welfare of a child and two counts of unlawfullydealing with a child in the first degree. Defendant initially pleaded guilty to one count ofrape in the first degree, but withdrew that plea with County Court's permission. At theconclusion of the jury trial that ensued, defendant was convicted of all charges. CountyCourt thereafter sentenced defendant to an aggregate prison term of 57 years, to befollowed by postrelease supervision of 20 years. Defendant now appeals.
Defendant first contends that the verdict was not supported by legally sufficientevidence and, moreover, was against the weight of the evidence. There is no dispute thatdefendant was 23 years old and the victim was 15 years old when the attack occurred inMay [*2]2010. The victim testified that she inviteddefendant to her residence and that he and a second man snuck into her bedroom with herpermission, then provided her with hard liquor. She became uncomfortable after the menbecame too "touchy-feely" and attempted to leave the room, at which point the two menrestrained her and forcibly subjected her to vaginal and oral sex. The victim also testifiedthat, during the hour-long ordeal, defendant placed his finger in her anus. Her account ofevents was corroborated by an emergency room physician who examined her shortly afterthe assault, documented her injuries, and opined that they were recent and consistent withforcible penetration. DNA testing further confirmed that some of the genetic materialrecovered from the victim's person, as well as used condoms found in her bedroom,belonged to defendant. Viewing this evidence in the light most favorable to the People(see People v Mateo, 2 NY3d 383, 409 [2004], cert denied 542 US 946[2004]), we have no difficulty concluding that it was legally sufficient to support theverdict (see People v Brown, 232 AD2d 750, 751 [1996], lv denied 89NY2d 940 [1997]; People v Love, 177 AD2d 794, 797 [1991], lv denied79 NY2d 860 [1992]). We are further persuaded that the verdict was not against theweight of the evidence. The jury chose to credit the victim's detailed account of theattack over conflicting evidence, and we accord due deference to that determination(see People v Mateo, 2 NY3d at 410; People v McCloud, 121 AD3d 1286, 1286-1287 [2014];People v Brown, 232 AD2d at 751).
Defendant also asserts that County Court erred in permitting testimony by theemergency room physician as to whether the victim had been subjected to forcible rape.Inasmuch as defendant failed to object to that testimony at trial, this argument isunpreserved for our review (seePeople v Heath, 49 AD3d 970, 973 [2008], lv denied 10 NY3d 959[2008]). The argument is unpersuasive in any case, as the testimony at issue constituted aproper opinion by a qualified expert as to "how likely it is that consensual intercoursecause[d] injuries such as" those suffered by the victim (People v Welch, 71 AD3d1329, 1331 [2010], lv denied 15 NY3d 811 [2010]; see People v Vaello, 91 AD3d548, 548 [2012], lv denied 19 NY3d 868 [2012]).
Defendant next contends that the sexual abuse in the first degree charge alleges thathe forcibly inserted his finger in the victim's anus, and argues that County Court erred ingiving an accessorial liability instruction to the jury with regard to that count. It sufficesto say that, because "there is no legal distinction between liability as a principal orcriminal culpability as an accomplice," County Court was free to give the complained-ofcharge (People v Rivera, 84 NY2d 766, 769 [1995]; see People v Mateo,2 NY3d at 408-409; People vPierce, 106 AD3d 1198, 1201 n 2 [2013]).
Defendant further argues that his sentence is harsh and excessive. In that regard, thepresent charges represent defendant's first felony convictions and arise out of a singleencounter with the victim (compare People v Nelson, 68 AD3d 1252, 1256 [2009]).The People now argue that the aggregate sentence should not be disturbed, but it isworthy of note that, at sentencing, they advocated for concurrent sentences that wouldresult in an aggregate prison term of 25 years (see People v Cruz, 41 AD3d 893, 896-897 [2007], lvdenied 10 NY3d 933 [2008]; compare People v Kuklinski, 24 AD3d 1036, 1037 [2005],lv denied 7 NY3d 758 [2006]). After reviewing all of the circumstances of thiscase and defendant's prior criminal history, we modify defendant's sentence in the interestof justice by directing that the sentences for all charges run concurrently with theexception of that for sexual abuse in the first degree, which will run consecutively to thesentences on the other charges. Thus, defendant's sentence will be an aggregate prisonterm of 32 years to be followed by 20 years of postrelease supervision, which constitutesan appropriate punishment for his repulsive acts (see CPL 470.15 [2] [c]; [6] [b];People v Wallace, 53 AD3d795, 798 [2008], lv denied 11 NY3d 795 [2008]; People v Cruz, 41AD3d at 896-897; People vNickel, 14 AD3d 869, 872-873 [2005], lv denied 4 NY3d 834[*3][2005]).
Defendant's remaining claims, including those advanced in his pro se supplementalbrief, have been examined and found to be lacking in merit.
McCarthy, J.P., Garry, Lynch and Devine, JJ., concur. Ordered that the judgment ismodified, as a matter of discretion in the interest of justice, by directing that defendant'ssentences for rape in the first degree, criminal sexual act in the first degree, rape in thethird degree, criminal sexual act in the third degree, sexual abuse in the third degree,endangering the welfare of a child (two counts) and unlawfully dealing with a child inthe first degree (two counts) under counts 1, 2, 4, 5, 6, 7, 8, 9 and 10 of the indictmentshall run concurrently to one another and consecutively to the sentence for sexual abusein the first degree under count 3 of the indictment, and, as so modified, affirmed.