| People v Hazzard |
| 2015 NY Slip Op 05317 [129 AD3d 1598] |
| June 19, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vKurt J. Hazzard, Appellant. |
Bruce R. Bryan, Syracuse, for defendant-appellant.
Leanne K. Moser, District Attorney, Lowville, D.J. & J.A. Cirando, Esqs.,Syracuse (John A. Cirando of counsel), for respondent.
Appeal from a judgment of the Lewis County Court (Daniel R. King, J.), renderedAugust 16, 2013. The judgment convicted defendant, upon a jury verdict, of rape in thefirst degree, rape in the third degree, criminal sexual act in the first degree, criminalsexual act in the third degree and endangering the welfare of a child.
It is hereby ordered that the judgment so appealed from is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of, inter alia, rape in the first degree (Penal Law § 130.35 [1]),arising from allegations that he had sexual intercourse with a 15-year-old girl onDecember 25, 2011. On appeal, defendant contends that County Court abused itsdiscretion in denying his recusal motion. We reject that contention. It is well settled that,"[u]nless disqualification is required under Judiciary Law § 14, a judge'sdecision on a recusal motion is one of discretion . . . 'This discretionarydecision is within the personal conscience of the court when the alleged appearance ofimpropriety arises from inappropriate awareness of nonjuridical data' . . .[Thus,] for any alleged bias and prejudice to be disqualifying it 'must stem from anextrajudicial source and result in an opinion on the merits on some basis other than whatthe judge learned from his [or her] participation in the case' " (People v Glynn, 21 NY3d614, 618 [2013]; see People v Alomar, 93 NY2d 239, 246 [1999]). "Even. . . when recusal is sought based upon 'impropriety as distinguished fromlegal disqualification, the judge . . . is the sole arbiter' " (Peoplev Moreno, 70 NY2d 403, 406 [1987]). Defendant does not contend that recusal wasmandatory, and we agree with the People that the court did not abuse its discretion indenying defendant's motion.
We reject defendant's further contention that the court erred in refusing to suppress atowel upon which both the victim's DNA and defendant's DNA, sperm, and seminal fluidwere found. At the time of the offense, the victim's grandmother had custody of thevictim and her siblings, and they and defendant all lived in the same house. The towelwas found in that house by the victim and her mother's boyfriend, who went there toretrieve the victim's belongings after this incident was reported to the authorities. "It iswell settled that a search by a private person, even an unlawful search, does not implicateFourth Amendment considerations" (People v Adler, 50 NY2d 730, 736-737[1980], cert denied 449 US 1014 [1980]), unless the private conduct is "sopervaded by governmental involvement that it loses its character as such and invokes thefull panoply of constitutional protections" (People v Ray, 65 NY2d 282, 286[1985]). Here, defendant failed to demonstrate "a clear connection between the policeand the private investigation . . . ; completion of the private act at theinstigation of the police . . . ; close supervision of the private conduct by thepolice . . . ; [or] a private act undertaken on behalf of the police to further apolice objective" (Ray, 65 NY2d at 286; see People v Ruppert, 42 AD3d 817, 817-818 [2007], lvdenied 9 NY3d 964 [2007]).
Contrary to defendant's further contention, viewing the evidence in light of theelements [*2]of the crimes relating to the Decemberincident as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), weconclude that the verdict is not against the weight of the evidence (see generallyPeople v Bleakley, 69 NY2d 490, 495 [1987]). It is well settled that " 'thosewho see and hear the witnesses can assess their credibility and reliability in a manner thatis far superior to that of reviewing judges who must rely on the printed record' "(People v Woolson, 122AD3d 1353, 1354 [2014], quoting People v Lane, 7 NY3d 888, 890 [2006]), and that "[t]hecredibility of the victim and the weight to be accorded her testimony were matters for thejury" (People v Halwig, 288 AD2d 949, 949 [2001], lv denied 98 NY2d710 [2002]; see People vGray, 15 AD3d 889, 890 [2005], lv denied 4 NY3d 831 [2005]). Here,we conclude that the jury's determination to credit the victim's testimony with respect tothis incident is supported by the weight of the evidence, including her testimony thatdefendant held her down and restrained her while forcing her to engage in sexualintercourse (see People vLittebrant, 55 AD3d 1151, 1154-1155 [2008], lv denied 12 NY3d 818[2009]), and DNA evidence linking defendant to the crimes (see generally People vMitchell, 43 AD3d 1337, 1338 [2007], lv denied 9 NY3d 1036 [2008];People v Griffin, 41 AD3d1285, 1287 [2007], lv denied 9 NY3d 923 [2007], reconsideration denied9 NY3d 990 [2007]). Indeed, we note that the People's DNA expert testified that, in"the semen-stained cutting from the bath towel, the sperm fraction is a mixture profileconsistent with DNA from [defendant] mixed with DNA from" the victim.
Defendant further contends that the court erred in prohibiting him from questioningthe People's expert regarding prior sexual conduct by the victim. We reject thatcontention. "Evidence of the victim's prior sexual conduct did not fall within any of theexceptions set forth in CPL 60.42 (1) through (4), and defendant failed to make an offerof proof demonstrating that such evidence was relevant and admissible pursuant to CPL60.42 (5)" (People v Brink,30 AD3d 1014, 1015 [2006], lv denied 7 NY3d 810 [2006]; see People v Wright, 37 AD3d1142, 1143 [2007], lv denied 8 NY3d 951 [2007]; see also People v Williams, 61AD3d 1383, 1383 [2009], lv denied 13 NY3d 751 [2009]). Defendant failedto preserve for our review his contention that the court should have declared a mistrialafter making a gesture that allegedly demeaned defense counsel, inasmuch as defensecounsel initially made a motion for a mistrial regarding the alleged gesture but withdrewit "before the court rendered its decision" (People v Corbett, 258 AD2d 919, 919[1999], lv denied 93 NY2d 898 [1999]). We decline to exercise our power toreview defendant's contention as a matter of discretion in the interest of justice (seeCPL 470.15 [6] [a]).
Finally, the sentence is not unduly harsh or severe.
All concur except Sconiers, J., who dissents and votes to reverse in accordance withthe following memorandum.
Sconiers, J. (dissenting). I respectfully dissent. Viewing the evidence in light of theelements of the crimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), Iconclude that the verdict finding defendant guilty of the charges arising from the incidenton December 25, 2011 is against the weight of the evidence (see generally People vBleakley, 69 NY2d 490, 495 [1987]). I would therefore reverse the judgment,dismiss the indictment, and remit the matter to County Court for proceedings pursuant toCPL 470.45.
"The Court of Appeals has recently reiterated that, in reviewing the weight of theevidence, we must 'affirmatively review the record; independently assess all of the proof;substitute [our] own credibility determinations for those made by the jury in anappropriate case; determine whether the verdict was factually correct; and acquit adefendant if [we are] not convinced that the jury was justified in finding that guilt wasproven beyond a reasonable doubt' " (People v Oberlander, 94 AD3d 1459, 1459 [2012], quotingPeople v Delamota, 18NY3d 107, 116-117 [2011]). I am not convinced that guilt was proven beyond areasonable doubt. Although I am cognizant that the jury's credibility determinations areentitled to great deference, in this case the credibility of certain prosecution witnesses,including the victim, is "manifestly suspect" (People v O'Neil, 66 AD3d 1131, 1133 [2009]; seePeople v Bastow, 217 AD2d 930, 931 [1995], lv denied 86 NY2d 872[1995]). Indeed, "the jury evidently had little confidence in the victim's credibility since itacquitted defendant of all counts in connection with [two other] incidents" in August andNovember 2011 (O'Neil, 66 AD3d at 1134). Another prosecution witnessadmitted that she made a false allegation of rape against defendant, and gave conflictingaccounts of defendant's whereabouts at the time of the December 25, 2011 incident.
In addition, the testimony concerning the discovery by the victim and her mother'sboyfriend of the semen-stained bath towel, the crucial item of evidence againstdefendant, " 'is incredible and unbelievable, that is, impossible of belief becauseit is . . . contrary to experience'[*3]"(People v Garafolo, 44 AD2d 86, 88 [1974]; see People v Wallace, 306AD2d 802, 802-803 [2003]). Moreover, the towel was discovered three days followingthe incident and, during the interim between the alleged crime and its discovery, thetowel was accessible to persons who had an acrimonious relationship with defendant.Those circumstances thoroughly undermined any weight that should otherwise have beenaccorded to the only physical evidence against defendant (cf. People v Ortiz, 80 AD3d628, 629-630 [2011], lv denied 16 NY3d 862 [2011]).
Finally, "[e]ven assuming that the verdict of guilt was not against the weight of theevidence, pursuant to our interest of justice jurisdiction (see, CPL 470.15 [3] [c]),[I] would reverse the judgment and dismiss the indictment because the evidence in thiscase leaves [me] with a very disturbing feeling that guilt has not been satisfactorilyestablished; [that is,] that there is a grave risk that an innocent man has been convicted"(People v Gioeli, 288 AD2d 488, 489 [2001] [internal quotation marks omitted];see generally People v Carter, 63 NY2d 530, 536 [1984]; People v Kidd,76 AD2d 665, 668 [1980], lv dismissed 51 NY2d 882 [1980]).Present—Scudder, P.J., Smith, Sconiers, Whalen and DeJoseph, JJ.