| People v Powell |
| 2015 NY Slip Op 04168 [128 AD3d 1174] |
| May 14, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vYockol Powell, Appellant. |
Donna Maria Lasher, Youngsville, for appellant.
James R. Farrell, District Attorney, Monticello (Katy Schlichtman of counsel), forrespondent.
Lynch, J. Appeal from a judgment of the County Court of Sullivan County (LaBuda,J.), rendered March 22, 2012, upon a verdict convicting defendant of the crimes of rapein the third degree, criminal trespass in the second degree (two counts), endangering thewelfare of a child and criminal contempt in the second degree.
Defendant was charged by indictment with two counts of burglary in the seconddegree, rape in the first degree, endangering the welfare of a child and criminal contemptin the second degree stemming from events occurring in the victim's apartment in May2011. Following a jury trial, defendant was convicted of the latter two charges and thelesser included charges of rape in the third degree and two counts of criminal trespass inthe second degree. County Court thereafter sentenced defendant to an aggregate prisonterm of three years, followed by 15 years of postrelease supervision. Defendant appealsand we affirm.
Defendant challenges the verdict as both legally insufficient and as against theweight of the evidence, focusing primarily on the contention the People failed to provethat defendant engaged in nonconsensual sexual intercourse with the victim. In order topreserve a challenge to the legal sufficiency of the evidence, a defendant must make aspecific motion to dismiss at the close of the proof (see People v Kolupa, 13 NY3d 786, 787 [2009]; People v Hawkins, 11 NY3d484, 492 [2008]; People vDesmond, 118 AD3d 1131, 1132 [2014], lv denied 24 NY3d 1002[2014]). A review of the record here shows that defendant's legal insufficiency claim was[*2]preserved only as to the rape conviction. Nonetheless,in deciding whether the verdict was against the weight of the evidence, we necessarilyreview the legal sufficiency of the evidence on each charge (see People v Danielson, 9NY3d 342, 348-349 [2007]).
With respect to the rape conviction, the People were required to prove that defendant"engage[d] in sexual intercourse with another person without such person's consentwhere such lack of consent is by reason of some factor other than incapacity to consent"(Penal Law § 130.25 [3]). A "[l]ack of consent" is further defined as"circumstances under which . . . the victim clearly expressed that he or shedid not consent to engage in [the sexual] act, and a reasonable person in the actor'ssituation would have understood such person's words and acts as an expression of lack ofconsent to such act under all the circumstances" (Penal Law § 130.05 [2][d]; see People v Worded, 22 NY3d 982, 984 [2013]).
The victim and defendant had four children together during a 12-year relationship,including a 10 year old who testified at trial (hereinafter the child). Two days prior to theevents at issue, the victim moved into an apartment with the children. Defendant did notlive in the apartment and had not been given a key. The victim testified that, on theevening of May 25, 2011, she returned home with her children and found defendantinside the apartment. An altercation ensued in which defendant struck the victim multipletimes. After the child screamed and threw a wheel at defendant, defendant told the childthat the victim was a "bozo ass bitch. She deserves what she gets" and pushed the childinto a bedroom. The altercation resumed and defendant threw the victim to the floorwhile kicking her in the ribs. After several minutes, defendant then asked, "[W]hat wouldyou do if I raped you, would you tell the police?" The victim testified that she did notrespond, explaining that in "domestic violence cases, they tell you just go along with it,you know, just to try to get [the] abuser away." The victim and defendant then engagedin sexual intercourse in her bedroom. The victim testified that, although she was trying tobe quiet because her infant child was in the room, she "told him to stop [because that washurting, I was hurt, my ribs, my legs everything was hurting." Defendant left in themorning and, when the victim returned to the apartment later that day, she called 911suspecting that he had returned. The police arrived within minutes and found defendanthiding in the closet of his daughter's bedroom.
We recognize that the victim was a reluctant witness who wanted to maintain herrelationship with defendant. She explained that it was common for the parties to engagein sexual intercourse after a verbal or physical altercation. When County Court inquiredwhether the sexual intercourse was against her will, she responded "not necessarily."Notwithstanding the victim's equivocation, the record shows that she had been beatenand injured prior to the act of intercourse and, consequently, asked defendant to stopduring the act. Moreover, the child testified that she witnessed the physical altercationand heard the victim "screaming [for defendant to] get off her." Contrary to the victim'stestimony, the child also testified that, before she was put into the bedroom, she observeddefendant remove the victim's pants.
Viewing this evidence in a light most favorable to the People, we find that the jurycould rationally conclude that the victim did not consent to the sexual encounter, and thatthe evidence was legally sufficient to support the rape conviction. Although a differentverdict would not have been unreasonable, after viewing and weighing the evidence in aneutral light, with deference to the jury's credibility assessments, we further conclude thatthe verdict on this count is not contrary to the weight of the evidence (see People vDesmond, 118 AD3d at 1132-1133; People v Simonetta, 94 AD3d 1242, 1243-1244 [2012],lv denied 19 NY3d 1029 [2012]).
We further conclude that the verdict is not against the weight of the evidence on the[*3]remaining convictions. With respect to theendangering the welfare of a child conviction, the People were required to prove thatdefendant "engage[d] in conduct knowing it [would] present a 'likelihood' of harm to achild (i.e., with an awareness of the potential for harm)" (People v Hitchcock, 98NY2d 586, 590 [2002], quoting People v Johnson, 95 NY2d 368, 372 [2000]).That defendant repeatedly struck the victim directly in the presence of the child, whoattempted to intervene on behalf of her mother, adequately supports this conviction(see People v Johnson, 95 NY2d at 371-372 [2000]; People v Bell, 80 AD3d891, 891 [2011]; People vBray, 46 AD3d 1232, 1234 [2007]). Further, as defendant entered and remainedin the victim's apartment without permission on both days described above, the jurycould readily find defendant guilty of two counts of criminal trespass in the seconddegree (see Penal Law § 140.15 [1]; People v Carter, 46 AD3d1335, 1335 [2007], lv denied 10 NY3d 932 [2008]; People v Jackson, 38 AD3d1052, 1054 [2007], lv denied 8 NY3d 986 [2007]; People v Hudson,269 AD2d 747, 747 [2000], lv denied 94 NY2d 948 [2000]). Given theundisputed fact that an order of protection issued in 2002 remained in effect at the timeof this incident and required defendant to stay away from the victim and her home, thejury could reasonably find defendant guilty of criminal contempt in the second degree(see Penal Law § 215.50 [3]; People v Lewis, 5 NY3d 546, 552-553 [2005]; People v McPherson, 32 AD3d558, 559 [2006], lv denied 7 NY3d 868 [2006]).
Finally, defendant contends that he was deprived of a fair trial by comments made bythe prosecutor during summation. Notably, defendant failed to preserve this claim byraising any objections at trial (see People v Adams, 39 AD3d 1081, 1083 [2007], lvdenied 9 NY3d 872 [2007]; People v Nichols, 257 AD2d 851, 853 [1999],lv denied 93 NY2d 901 [1999]).[FN*]
Peters, P.J., Egan Jr. and Rose, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:Were this issue properlybefore us, however, we would reject defendant's claim. A prosecutor is accorded "broadlatitude" when responding to a defense counsel's summation, although there arelimitations inherent in a prosecutor's status as a quasi-judicial officer that compels aprosecutor to act impartially in the pursuit of justice (People v Wilhelm, 34 AD3d 40, 54 [2006]; see Peoplev D'Alessandro, 184 AD2d 114, 119 [1992], lv denied 81 NY2d 884 [1993]).Here, defense counsel emphasized that this was a "family" matter and the People wereprimarily concerned with "conviction statistics," going so far as to assert that "[thevictim] needs an [o]rder of [p]rotection from the D.A.'s office." Such commentarypredictably prompted a strong and sometimes improper response from the prosecutor, butnot one so substantially prejudicial as to deprive defendant of a fair trial (see People v Santiago, 22NY3d 740, 752 [2014]; People v Nelson, 68 AD3d 1252, 1255 [2009]).