| People v Gibson |
| 2015 NY Slip Op 09722 [134 AD3d 1512] |
| December 31, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vEdward J. Gibson, Jr., Appellant. |
Charles T. Noce, Conflict Defender, Rochester (Kimberly J. Czapranski of counsel),for defendant-appellant.
Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (David D. Egan, J.), renderedOctober 29, 2009. The judgment convicted defendant, upon a jury verdict, of sexualabuse in the first degree (two counts), assault in the third degree and criminal contempt inthe first degree.
It is hereby ordered that the judgment so appealed from is unanimously modified onthe facts by reversing that part convicting defendant of assault in the third degree undercount seven of the indictment and dismissing that count, and as modified the judgment isaffirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of twocounts of sexual abuse in the first degree (Penal Law § 130.65 [1]) and onecount each of assault in the third degree (§ 120.00 [1]) and criminalcontempt in the first degree (§ 215.51 [b] [v]), defendant contends, interalia, that he was deprived of a fair trial by prosecutorial misconduct during summation.Defendant failed to preserve the alleged instances of misconduct for our review,inasmuch as defense counsel did not object to certain instances (see People v Paul, 78 AD3d1684, 1684-1685 [2010], lv denied 16 NY3d 834 [2011]), made "onlyunspecified, general objections" to others (People v Romero, 7 NY3d 911, 912 [2006]), and failed totake any further actions such as requesting a curative instruction or moving for a mistrialwhen his objections were sustained (see People v Medina, 53 NY2d 951, 953[1981]). We nevertheless exercise our power to review his contention as a matter ofdiscretion in the interest of justice (see CPL 470.15 [6] [a]).
Despite this Court's repeated admonitions to prosecutors not to engage in misconductduring summation, the prosecutor improperly referred to facts not in evidence when heinsinuated that the victim regretted that she did not get out of defendant's vehicle (seePeople v Ashwal, 39 NY2d 105, 109-110 [1976]). The prosecutor also improperlyappealed to the jury's sympathy and bolstered the victim's credibility, and did sorepeatedly, by commenting on how difficult it was for her to recount her ordeal, first tothe police, then before the grand jury, and finally in her trial testimony (see People v Fisher, 18 NY3d964, 966 [2012]). In addition, the prosecutor improperly suggested that the juryexperiment on themselves to see how quickly bite marks fade (see People vBrown, 196 AD2d 878, 878-879 [1993], lv denied 82 NY2d 891 [1993];see also People v Legister, 75 NY2d 832, 832-833 [1990]). Nevertheless,"[a]lthough we do not condone the prosecutor's conduct, it cannot be said here that it'caused such substantial prejudice to the defendant that he has been denied due process oflaw' " (People v Glen, 283 AD2d 987, 987 [2001], lv denied 96NY2d 918 [2001], quoting People v Mott, 94 AD2d 415, 419 [1983]). Weadmonish the prosecutor, however, "and remind him that prosecutors have 'specialresponsibilities . . . to safeguard the integrity of criminal proceedings andfairness in the criminal process' " (People v Huntsman, 96 AD3d 1387, 1388 [2012], lvdenied 20 NY3d 1099 [2013], quoting People v Santorelli, 95 NY2d 412,421 [2000]).
We reject defendant's contention that the evidence is legally insufficient to supporthis conviction of two counts of sexual abuse in the first degree. Contrary to defendant'scontention, we conclude that the evidence, viewed in the light most favorable to thePeople, is legally [*2]sufficient to establish that hesubjected the victim to sexual contact by forcible compulsion (see People v Brown, 39 AD3d886, 888 [2007], lv denied 9 NY3d 873 [2007]). Viewing the evidence inlight of the elements of that crime as charged to the jury (see People v Danielson, 9NY3d 342, 349 [2007]), we further conclude that the verdict on those counts is notagainst the weight of the evidence (see generally People v Bleakley, 69 NY2d490, 495 [1987]).
Defendant also contends that the evidence is legally insufficient to support hisconviction of assault in the third degree and that the verdict is against the weight of theevidence with respect to that crime inasmuch as the People failed to prove that he causedphysical injury to the victim. Defendant failed to preserve his legal sufficiency contentionfor our review because his motion for a trial order of dismissal with respect to that count"was not specifically directed at the ground advanced on appeal" (People v Vassar, 30 AD3d1051, 1052 [2006], lv denied 7 NY3d 796 [2006]; see People v Gray,86 NY2d 10, 19 [1995]). "However, we necessarily review the evidence adduced as toeach of the elements of the crimes in the context of our review of defendant's challengeregarding the weight of the evidence" (People v Caston, 60 AD3d 1147, 1148-1149 [2009];see Danielson, 9 NY3d at 349; People v Heatley, 116 AD3d 23, 27 [2014], appealdismissed 25 NY3d 933 [2015]), and we agree with defendant that the verdict isagainst the weight of the evidence with respect to that crime. We conclude, upon ourindependent review of the evidence, that the People failed to prove beyond a reasonabledoubt that the victim sustained a physical injury (see generally Danielson, 9NY3d at 349). The indictment alleged that defendant caused physical injury to the victim"by striking her in the face." Although the victim testified that defendant struck her in theface, and photographs of the victim showed swelling and discoloration of the left side ofher face, the victim did not testify that she suffered substantial pain from that injury orthat she sought medical attention for it (see People v Boley, 106 AD3d 753, 753-754 [2013]; cf. People v Spratley, 96 AD3d1420, 1421 [2012]). We therefore modify the judgment accordingly.Present—Scudder, P.J., Centra, Lindley, Valentino and Whalen, JJ.