| People v Bowman |
| 2016 NY Slip Op 03912 [139 AD3d 1251] |
| May 19, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vGene Bowman, Appellant. |
Paul J. Connolly, Delmar, for appellant, and appellant pro se.
P. David Soares, District Attorney, Albany (Brittany L. Grome of counsel), forrespondent.
Devine, J. Appeal from a judgment of the County Court of Albany County (Lynch,J.), rendered June 2, 2014, upon a verdict convicting defendant of the crime of rape inthe first degree.
On the morning of January 15, 2012, the victim was engaging in prostitution tofinance her drug habit and was propositioned by a passing driver in the City of Albany.The two proceeded to a parking lot where, instead of paying the victim, the perpetratorforcibly raped her in the back seat of his car. The victim eventually escaped his clutchesand obtained assistance from individuals who were working nearby, prompting theperpetrator to flee. The victim spotted the perpetrator on the street several days later andcontacted authorities, who briefly detained him and identified him as defendant.Following an investigation, defendant was charged in an indictment with variousoffenses stemming from the incident. Defendant was ultimately convicted by a jury ofrape in the first degree and was sentenced, as a second felony offender, to a prison termof 21 years to be followed by postrelease supervision of 20 years. He appeals and,County Court having acted with commendable speed to address our concerns regardingthe record (137 AD3d 1484 [2016]), we now affirm.
Defendant first argues that the verdict was against the weight of the evidence. Thecredibility of the victim was undoubtedly open to question as she was an acknowledgeduser of heroin and crack cocaine and had mental health issues, as well as a variedcriminal history that included crimes of deceit. Nevertheless, while no bystandersobserved the rape itself and there is no physical evidence directly establishing that thevictim was forced to engage in sexual activity, [*2]hertestimony was corroborated in other respects. The individuals who were working nearbyon the morning of the incident testified that the victim ran toward them, all but nude,crying that she had been raped and begging for help. The victim then underwent a sexualassault examination, and the examining nurse testified that it was "common" not to haveinjuries as the result of a vaginal rape and that her physical observations were consistentwith the assault described by the victim. An analysis of genetic material recovered in thecourse of that examination further revealed a partial male DNA profile consistent withdefendant's DNA, a consistency that would only hold true for one out of every 5,236men. The victim never wavered in identifying defendant as the perpetrator and deniedthat she had a prior sexual relationship with him—indeed, she stated that she hadnever met him before January 15, 2012—which stood in marked contrast to theimplausible account given by defendant. Defendant squarely attacked the credibility ofthe victim at trial but, despite those efforts, the jury credited her testimony and otherproof indicating that the rape had occurred. It is the province of the jury to resolve suchcredibility issues and, "[a]ccording appropriate deference to its determination andviewing the evidence in a neutral light, we conclude that the weight of the evidencesupports the verdict" (People vWashington, 89 AD3d 1140, 1141 [2011], lv denied 18 NY3d 963[2012]; see People vMelendez, 138 AD3d 1159, 1160 [2016]).
Defendant also complains that defense counsel rendered ineffective assistance invarious respects. Defendant asserts that the People committed prosecutorial misconductin cross-examining him about, then referencing in summation, facts outside the trialrecord relating to the victim abandoning her purse and identification in the car followingthe assault, and that defense counsel was ineffective in failing to preserve the issue forour review (see People vWright, 25 NY3d 769, 779-780 [2015]; People v Colburn, 123 AD3d 1292, 1296 [2014], lvdenied 25 NY3d 950 [2015]). Any such objection by defense counsel would havebeen unavailing, however, as the People's assertions were readily inferable from thevictim's account of the incident and other testimony that the police had searchedunsuccessfully for a pocketbook and personal effects that she had abandoned in the car(see People v Bautista, 132AD3d 523, 526 [2015]).
Defendant similarly contends that defense counsel was ineffective in failing to objectto the admission into evidence of a redacted police interview that omitted blatantreferences to defendant's recent release from prison to parole supervision, but containedoblique statements about him having gotten "out" and come "home." Insofar as defendantacknowledged in his own testimony that he had prior criminal convictions, however,these fleeting references did not deprive him of a fair trial so as to demand further actionby defense counsel (see Peoplev Smith, 66 AD3d 1223, 1224 [2009], lv denied 14 NY3d 773 [2010];People v Plummer, 24AD3d 1027, 1028 [2005], lv denied 6 NY3d 837 [2006]). The totality of therecord shows that defense counsel engaged in appropriate pretrial motion practice,pursued a viable trial strategy, vigorously cross-examined the People's witnesses andobtained an acquittal on two of the charges, and counsel accordingly providedmeaningful representation (seePeople v Pavone, 26 NY3d 629, 646-647 [2015]; People v Henry, 129 AD3d1334, 1337 [2015], lv denied 26 NY3d 930 [2015]).
Defendant next argues that County Court abused its discretion in rebuffing his effortsto obtain access to the medical and psychiatric records of the victim. Confidential recordssuch as the ones sought by defendant will not be discoverable in an open-ended "fishingexpedition searching for some means of attacking the victim's credibility" (People v Brown, 24 AD3d884, 887 [2005], lv denied 6 NY3d 832 [2006]; accord People v McCray, 102AD3d 1000, 1005 [2013], affd 23 NY3d 193 [2014]; see People vGissendanner, 48 NY2d 543, 549-550 [1979]). Rather, County Court employed thecorrect procedure of reviewing the records in camera and assessing whether defendanthad "demonstrate[d] that the records contain data 'relevant and [*3]material to the determination of guilt orinnocence' " (People vPlaza, 60 AD3d 1153, 1154-1155 [2009], lv denied 12 NY3d 919[2009], quoting People v Gissendanner, 48 NY2d at 548). The pertinent questionis whether County Court abused its discretion in declining to order disclosure of therecords and, in answering that question, we are mindful that "defendant's interest [indisclosure] could be outweighed [by the victim's interest in confidentiality] only if therewas no reasonable possibility that the withheld materials would lead to his acquittal"(People v McCray, 23 NY3d 193, 198 [2014]; see People vGissendanner, 48 NY2d at 548).
Defendant suggests that the records contain information that would have been usefulin challenging the victim's credibility, such as indications that her observations ormemory were unreliable. Defendant was well aware of the victim's relevant mental healthand substance abuse history, however, as the People had obtained that information fromconversations with the victim and disclosed it prior to trial. Defense counsel made fulluse of that information in his cross-examination of the victim, raising the specter that herrecollection of events was suspect because of her drug use and mental health issues. Ourreview of the records confirms that the records "are either cumulative or of little if anyrelevance to [defendant's] case" due to the pretrial disclosures of the People and, as aresult, County Court did not abuse its discretion in declining to order their disclosure(People v McCray, 23 NY3d at 198-199).
In light of defendant's extensive criminal history and the serious nature of the offensefor which he was convicted, we perceive no extraordinary circumstances or abuse ofdiscretion that would warrant a reduction in the sentence imposed (see People v Terry, 85 AD3d1485, 1489 [2011], lv denied 17 NY3d 862 [2011]). The remainingchallenges advanced by defendant, both in defense counsel's brief and defendant's pro sesupplemental brief, have been examined and afford no basis for disturbing thejudgment.
McCarthy, J.P., Egan Jr., Rose and Clark, JJ., concur. Ordered that the judgment isaffirmed.