| People v Parker |
| 2015 NY Slip Op 03204 [127 AD3d 1425] |
| April 16, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Troy Parker, Appellant. |
Catherine A. Barber, Albany, for appellant.
P. David Soares, District Attorney, Albany (Brittany L. Grome of counsel), forrespondent.
Clark, J. Appeal from a judgment of the County Court of Albany County (Herrick,J.), rendered November 1, 2012, upon a verdict convicting defendant of the crimes ofsexual abuse in the first degree, strangulation in the second degree and robbery in thesecond degree.
During the early morning hours of March 6, 2011, the victim was returning home toher apartment in the City of Albany. As she was entering her building, she saw defendantrunning toward her from across the street; however, before she could get inside,defendant shoved her into the vestibule, began choking her, sexually assaulted her anddemanded money and oral sex. During the struggle with defendant, the victim droppedall of her belongings, including her wallet. In an effort to show defendant that she had nomoney, the victim bent down to retrieve the wallet, at which time she noticed that thefront door to her building had been left slightly ajar. As defendant reached for her, thevictim quickly grabbed what items she could and escaped to the street to scream for help.Upon seeing the distraught victim running toward them and a man running in theopposite direction, two men came to the victim's aid and called 911.
When the police arrived, the victim told them that she had lost her mobile phoneduring the assault and gave the officers a set of keys she had picked up during thestruggle that did not belong to her. In addition to keys, the key ring contained a Kmartkey-tag membership card that police later found to be jointly registered to defendant andhis long-time girlfriend, listing an address in the City of Schenectady, SchenectadyCounty. Contemporaneous with the attack, police separately investigating a report of aparked car blocking a driveway across the street from [*2]the victim's apartment came upon a vehicle that was foundto be registered to the girlfriend at the same address. Later, upon arriving at theSchenectady address to execute a search warrant, the police were invited inside bydefendant's girlfriend, who had answered the door and introduced herself. Defendantthen attempted to flee the residence through a back door, only to reenter and bearrested.
Following a jury trial, defendant was convicted of sexual abuse in the first degree,strangulation in the second degree and robbery in the second degree and sentenced as apersistent violent felony offender to concurrent prison terms of 22 years to life on hissexual abuse and strangulation convictions, to run consecutively with a prison term of 18years to life on his robbery conviction. Defendant now appeals.
Initially, defendant's general motion to dismiss the charges against him at theconclusion of the People's case is insufficient to preserve for appellate review his legalsufficiency of the evidence claim (see People v Hawkins, 11 NY3d 484, 492 [2008];People v Finger, 95 NY2d 894, 895 [2000]). However, to the extent thatdefendant also contends that his convictions are against the weight of theevidence—a challenge which bears no preservation requirement—wenonetheless undertake "an evaluation of whether all elements of the charged crime[s]were proven beyond a reasonable doubt at trial" (People v Menegan, 107 AD3d 1166, 1169 [2013] [internalquotation marks and citations omitted]; see People v Danielson, 9 NY3d 342, 348-349 [2007]; People v Romero, 7 NY3d633, 643-644 [2006]; People v Bleakley, 69 NY2d 490, 495 [1987]). In thisregard, we are not persuaded by defendant's contention and determine that the verdict isnot against the weight of the evidence.
As pertinent here, a person is guilty of sexual abuse in the first degree when he or shesubjects another person to sexual contact "[b]y forcible compulsion" (Penal Law§ 130.65 [1]; see Penal Law § 130.00 [3], [8]). Thevictim here testified that defendant pushed his way into her apartment building, beganchoking her, lifted her off the ground, slid his hand up her leg under her dress andtouched her on the outside of her underwear. Throughout the attack she was kickingdefendant, screaming and trying to get away. Defendant contends that the victim'stestimony is insufficient to demonstrate that he was the perpetrator of the acts describedinasmuch as she failed to identify him as her assailant when showed a photo array. In thisregard, the victim explained that she was unable to get a good view of her assailant's facein light of their size differential. However, the victim and the two eyewitnesses allconsistently described the attacker as a black man with distinctive dreadlocks; adescription that accurately fit defendant. Further evidence demonstrated that defendant'skeys and his girlfriend's vehicle were found at the scene of the crime and, in an oralstatement to police, defendant himself admitted to being present in the area and "flirting"with a woman fitting the victim's description on the night in question. Thus, while adifferent result would not have been unreasonable, viewing the evidence in a neutrallight and deferring to the jury's credibility determinations (see People v Robinson, 123AD3d 1224, 1226-1227 [2014]; People v Mercado, 113 AD3d 930, 932 [2014], lvdenied 23 NY3d 1040 [2014]), we find that defendant's conviction for sexual abusein the first degree is not against the weight of the evidence.
Turning next to the strangulation conviction, a person is guilty of strangulation in thesecond degree "when he or she commits the crime of criminal obstruction of breathing orblood circulation . . . and thereby causes stupor, loss of consciousness forany period of time, or any other physical injury or impairment" (Penal Law§ 121.12; see Penal Law § 10.00 [9]). "To besubstantial, pain must be 'more than slight or trivial' but 'need not . . . besevere or intense' " (People v Carte, 113 AD3d 191, 193 [2013], lvdenied 23 NY3d 1035 [2014], quoting People v Chiddick, 8 NY3d 445, 447 [2007]). "Significantfactors in determining whether pain is[*3]'substantial'include the objective nature of the injury, the victim's subjective experience and whetherthe victim sought medical treatment" (People v Carte, 113 AD3d at 193-194[citations omitted]). Here, as noted above, the victim testified that defendant forced hisway into her apartment building, began choking her and lifted her off the ground. Shefurther testified that, after the attack, she felt severe pain throughout her entire neck andback and could not speak. The medical testimony presented by the People indicates thatthe victim was diagnosed with a tracheal contusion and multiple scratches and abrasionsand that the area around her throat was very painful to the touch. Thus, we also find thatdefendant's conviction of this crime is not against the weight of the evidence.
Finally, with respect to the robbery conviction, as relevant here, a defendant is guiltyof robbery in the second degree "when he [or she] forcibly steals property and when. . . [i]n the course of the commission of the crime . . . , he or[she] . . . [c]auses physical injury to any person who is not a participant inthe crime" (Penal Law § 160.10 [2] [a]). "A person commits 'forciblestealing' when, during the commission of a larceny, such individual 'uses or threatens theimmediate use of physical force upon another person for the purpose of . . .[p]reventing or overcoming resistance to the taking of the property or to the retentionthereof immediately after the taking' " (People v Gordon, 23 NY3d 643, 649-650 [2014], quotingPenal Law § 160.00 [1]). Here, the victim testified that defendantdemanded money from her and that, after fleeing from defendant, she no longer had hermobile phone despite having heard it ring during the assault. Because the phone inquestion was not recovered and there was no evidence of its use following the allegedassault, defendant contends that reversal of his conviction for robbery is warranted.However, "[a]s the Court of Appeals has recently instructed, recovery of the property isnot necessarily required to support a conviction, and whether a defendant's intent in usingforce was to retain possession of stolen property is a question of fact that may beanswered based upon reasonable inferences drawn from his or her conduct and thesurrounding circumstances" (People v Gordon, 119 AD3d 1284, 1286 [2014], lvdenied 24 NY3d 1002 [2014]; see People v Gordon, 23 NY3d at 650-651).Thus, after drawing reasonable inferences from the record before us and accordingappropriate deference to the jury's factual assessments and credibility determinations, weare unpersuaded by defendant's argument and find this conviction to be supported by theweight of the evidence.
Next, County Court properly found that probable cause existed for defendant's arrest."Probable cause 'does not require proof sufficient to warrant a conviction beyond areasonable doubt but merely information sufficient to support a reasonable belief that anoffense has been . . . committed' by the person arrested" (People v Shulman, 6 NY3d1, 25 [2005], cert denied 547 US 1043 [2006], quoting People vBigelow, 66 NY2d 417, 423 [1985]; accord People v August, 33 AD3d 1046, 1048 [2006],lv denied 8 NY3d 878 [2007]). "When determining whether the police hadprobable cause to arrest, the 'inquiry is not as to defendant's guilt but as to the sufficiencyfor arrest purposes of the grounds for the arresting officer's belief that [the defendant]was guilty' " (People v Shulman, 6 NY3d at 25-26, quoting People vCoffey, 12 NY2d 443, 452 [1963]; see CPL 140.10 [1] [b]). Here, at the timeof defendant's arrest, the police were aware that a set of keys and a vehicle found at thescene of the attack were associated with defendant and that his physical descriptionmatched that given by the victim and two other witnesses. Additionally, the arrestingofficers testified that, when they arrived at the address in Schenectady to execute thesearch warrant, they observed a man fitting the attacker's description attempting to leavethe residence out of the back door and, thus, moved quickly to secure his arrest.Accordingly, we are satisfied that defendant's warrantless arrest was supported byprobable cause.
[*4] Finally, defendantcontends that the sentence was overly harsh and excessive specifically arguing that,because the jury acquitted him of certain charges, County Court erred when it sentencedhim to "near the maximum allowable." We disagree. At the time of his arrest, defendantwas on parole and had an extensive criminal history, including, but not limited to, threeprior violent felony convictions. Therefore, given the absence of extraordinarycircumstances or an abuse of discretion, we find no reason warranting a reduction in theinterest of justice (see People vBjork, 105 AD3d 1258, 1264 [2013], lv denied 21 NY3d 1040[2013]).
Defendant's remaining argument has not been preserved for our review.
McCarthy, J.P., Egan Jr. and Devine, JJ., concur. Ordered that the judgment isaffirmed.