| People v Sposito |
| 2016 NY Slip Op 04467 [140 AD3d 1308] |
| June 9, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vJoseph Sposito, Appellant. |
E. Stewart Jones, PLLC, Troy (James C. Knox of counsel), for appellant.
P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), forrespondent.
McCarthy, J.P. Appeals (1) from a judgment of the County Court of Albany County(Herrick, J.), rendered June 6, 2012, upon a verdict convicting defendant of the crimes ofrape in the first degree and criminal sexual act in the first degree, (2) from an order ofsaid court, entered April 5, 2013, which denied defendant's motion pursuant to CPL440.30 (1-a) for the performance of forensic DNA testing on specified evidence, and (3)by permission, from an order of said court, entered April 24, 2014, which denieddefendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction,without a hearing.
Defendant was indicted in February 2011 for the crimes of rape in the first degree,criminal sexual act in the first degree and tampering with physical evidence. The chargesstemmed from allegations that defendant engaged in sexual intercourse and anal sexualconduct with the victim, who was incapable of consent by virtue of being physicallyhelpless due to alcohol consumption, and that he thereafter destroyed physical evidencerelated thereto. At the conclusion of the trial, defendant was found guilty of rape in thefirst degree and criminal sexual act in the first degree, and he was subsequently sentencedto an aggregate prison term of 20 years to be followed by 15 years of postreleasesupervision. Thereafter, defendant moved, pursuant to CPL 440.30 (1-a), for theperformance of forensic DNA testing on specified items of clothing, which motionCounty Court denied. Approximately a year later, defendant moved, pursuant to CPL440.10, to vacate the judgment of conviction on the ground that he was denied theeffective assistance of counsel, which motion the court also denied. Defendant nowappeals from the [*2]judgment of conviction and thedenial of his request for forensic DNA testing and, by permission, from the denial of hismotion to vacate.
Contrary to defendant's contention, the convictions are supported by legallysufficient evidence and are not against the weight of the evidence. With respect to thecrime of rape in the first degree, an individual is guilty of such crime "when he or sheengages in sexual intercourse with another person . . . [w]ho is incapable ofconsent by reason of being physically helpless" (Penal Law § 130.35 [2]; see People v Shepherd, 83AD3d 1298, 1298 [2011], lv denied 17 NY3d 809 [2011]). With respect tothe crime of criminal sexual act in the first degree, a person is guilty of such crime "whenhe or she engages in . . . anal sexual conduct with another person. . . [w]ho is incapable of consent by reason of being physically helpless"(Penal Law § 130.50 [2]). " 'Anal sexual conduct' means conductbetween persons consisting of contact between the penis and anus" (Penal Law§ 130.00 [2] [b]). With respect to both offenses, a person is physicallyhelpless if he or she is "unconscious or for any other reason is physically unable tocommunicate unwillingness to an act" (Penal Law § 130.00 [7]; see People v Bjork, 105 AD3d1258, 1260 [2013], lv denied 21 NY3d 1040 [2013], cert denied 571US &mdash, 134 S Ct 1306 [2014]). As to defendant's affirmative defense, where a"victim's lack of consent is based solely upon his or her incapacity to consent because heor she was . . . physically helpless, it is an affirmative defense that thedefendant, at the time he or she engaged in the conduct constituting the offense, did notknow of the facts or conditions responsible for such incapacity to consent" (Penal Law§ 130.10 [1]). A defendant bears the burden of establishing such defense bya preponderance of the evidence (see Penal Law § 25.00 [2];People v Bjork, 105 AD3d at 1262).
Proof at trial established that defendant and the victim socialized with a group ofcommon friends during a day and evening that included the consumption of alcohol. Asto the issue of the victim's helplessness during the sexual encounter that took place in theearly hours of the next morning, a forensic toxicologist reviewed blood samples takenfrom the victim shortly after that encounter. Based on those samples, the expert opinedthat the victim had an estimated blood alcohol content of .266% at the time of the sexualencounter. According to the expert, that blood alcohol content would have placed aperson in a "stupor" stage, marked by "a lack of consciousness, unconsciousness." Otherwitnesses painted a similar picture of the victim's capacity on the night and early morningin question. They described that, as the victim continued to consume alcohol, she beganfalling, stumbling and vomiting. After the victim had fallen asleep at one point, friendshad difficulty waking her up. As is particularly notable, to the extent that the victim'sfriends were able to rouse her, she was still unable to make coherent statements. Whenher friends needed to move her to different sleeping accommodations, one testified thatthe victim was "basically carr[ied]" to that bedroom, where she was put to bed with herclothes on. Shortly thereafter, defendant sought out the victim and engaged in sexual actswith her.
According to the victim, her last clear recollection of the night leading up to thesexual encounter was being at a bar and feeling unwell. After that, the victimremembered "com[ing] to" in a bathroom of a home, naked and covered with blood, with"a guy . . . [she had] never seen before." The victim described "thick bloodeverywhere" and feeling like her "uterus fell out of [her] body." At this point, the manwith her told her that she could not leave until she took a shower and cleaned up.According to the victim, when she saw an opportunity, she fled from the man and soughthelp. The registered nurse who subsequently administered the sexual assault examinationupon the victim explained that the victim had damage to her vaginal and anal wallsconsistent with blunt force trauma. The same nurse noted that the victim had bruising onher arms and thigh. Summarizing her findings, the nurse explained that she had "seen alot of cases," but that she had "never seen [as] much trauma to [the vaginal and anal]areas [as she] did in [the [*3]victim's] case."[FN1] Considering the trialevidence, defendant's convictions are supported by legally sufficient evidence (see People v Fuller, 50 AD3d1171, 1174 [2008], lv denied 11 NY3d 788 [2008]; People v Wicks, 73 AD3d1233, 1234 [2010], lv denied 15 NY3d 857 [2010]; People v Stasiak, 25 AD3d1025, 1026 [2006]). Further, deferring to the jury's decision to credit the victim andthe expert evidence over defendant's self-serving and uncorroborated testimony that thevictim was coherent and willingly engaged in the intercourse, the convictions are notagainst the weight of the evidence (see People v Bjork, 105 AD3d at1261-1262).
Further, although the People improperly vouched for the credibility of the victim'stestimony during summation, that misconduct did not rise to the level of deprivingdefendant of a fair trial (seePeople v Fiorino, 130 AD3d 1376, 1380 [2015], lv denied 26 NY3d1087 [2015]; People vGreen, 119 AD3d 23, 30 [2014], lv denied 23 NY3d 1062 [2014]). Inaddition, in light of the fact that defendant committed the crimes at issue in a particularlyviolent and injurious manner—facts not accounted for by the elements of thosecrimes—we reject defendant's contention that his sentence, which is less than thestatutory maximum, is harsh or excessive (see People v Thiel, 134 AD3d 1237, 1241 [2015]).
Likewise, defendant's argument that County Court erred in denying his motion forpostverdict DNA testing for the victim's clothing is without merit. Defendant contendsthat such testing could prove that the victim had sexual intercourse with someone otherthan defendant hours prior to his sexual intercourse with her, and that if this unknownparty caused the injuries to the victim then it would have "reduced or even eliminated"defendant's culpability. However, proof that would have supported defendant'sspeculation[FN2] inthis regard would not have shown the victim to be any less physically helpless during thesexual encounter. Accordingly, the presence of DNA from an unknown third person onthe victim's clothing would not create a reasonable probability of a verdict morefavorable to defendant and, therefore, County Court properly denied defendant's motionfor DNA testing (see People vBrown, 36 AD3d 961, 962 [2007], lv denied 8 NY3d 920 [2007];People v De Oliveira, 223 AD2d 766, 768 [1996], lv denied 88 NY2d1020 [1996]; see also People v Dearstyne, 305 AD2d 850, 853 [2003], lvdenied 100 NY2d 593 [2003]).
In addition, we discern nothing in the trial record sufficient to support defendant'scontention on his direct appeal from the judgment of conviction that he receivedineffective assistance of counsel. "[I]t is incumbent on [a] defendant to demonstrate theabsence of strategic or other legitimate explanations for counsel's [allegedshortcomings]" (People v Rivera, 71 NY2d 705, 709 [1988]; see People vThiel, 134 AD3d at 1240). Defendant's contention that counsel should have obtainedexperts who would have provided exculpatory evidence fails to exclude the objectivelylegitimate possibility that experts did not exist who would have provided testimony thatwas more exculpatory than inculpatory. Likewise, defendant failed to demonstrate theabsence of a legitimate strategy for counsel's decision not to seek suppression of therecorded law enforcement interview with defendant; having reviewed the video, in whichdefendant repeatedly professed his innocence and gave a narrative for the events inquestion largely consistent with [*4]what he eventuallytestified to at trial, we cannot say that defendant established that it was objectivelyunreasonable for counsel to have watched the video and concluded that it was morefavorable than unfavorable to defendant.
However, we find that County Court erred in denying, without a hearing, defendant'smotion to vacate the judgment pursuant to CPL 440.10 based upon his claims ofineffective assistance of counsel (see CPL 440.10 [1] [h]). To establishentitlement to a hearing, a defendant must demonstrate that "non-record facts set forth in[a] CPL article 440 motion . . . are material and [that], if established, theywould entitle him [or her] to relief" (People v Mosley, 121 AD3d 1169, 1174 [2014], lvdenied 24 NY3d 1086 [2014]; see CPL 440.30 [5]; People vSatterfield, 66 NY2d 796, 799 [1985]). Defendant's most significant swornallegation is that counsel failed to watch the entire recording of his interview with lawenforcement—or to read the entire transcript of that interview—prior towaiving any challenge to its admissibility and making assurances to the jury duringopening remarks as to the contents of that recording. Notably, defendant's father alsosubmitted a sworn statement suggesting that counsel may not have been familiar with thecontents of the recorded police interview. Further, defendant made factual allegationsconcerning the circumstances surrounding that interview that would, if credited, supporta finding that it was, at least in part, a custodial interrogation, which is relevant because astrategic decision whether to seek suppression would have required being sufficientlyfamiliar with the contents of that recording (see generally People v Rivera, 71NY2d at 709). Defendant also alleged a number of specific deficiencies in counsel'sassistance during the plea bargaining and trial stages which, if credited, may entitle himto relief (see People vBeckingham, 116 AD3d 1298, 1301 [2014]), including that counsel failed totimely convey a plea offer (seegenerally People v Fernandez, 5 NY3d 813, 814 [2005]). Defendant furtheravers that counsel made unqualified assurances regarding a favorable outcome if he wentto trial and made specific assurances concerning the sentence that would be imposed ifhe were convicted after trial. In regard to counsel's pretrial actions, defendant averredthat, but for counsel's false assurances and inadequate representation, he would haveaccepted a plea deal. Taken as a whole, we find that defendant provided sufficient sworn,material statements in support of his motion that, if credited, would establish that hereceived less than meaningful representation (see People v Rapp, 133 AD3d 979, 980 [2015]; Peoplev Mosley, 121 AD3d at 1174). Accordingly, we reverse the order denying hispostverdict CPL article 440 motion and remit to County Court to hold a hearing ondefendant's ineffective assistance of counsel claim (see People v Zeh, 22 NY3d 1144, 1146 [2014]; Peoplev Jenkins, 68 NY2d 896, 898 [1986]; People v Mosley, 121 AD3d at1174).
Garry, Egan Jr., Devine and Aarons, JJ., concur. Ordered that the judgment renderedJune 6, 2012 and the order entered April 5, 2013 are affirmed. Ordered that the orderentered April 24, 2014 is reversed, on the law, and matter remitted to the County Courtof Albany County for further proceedings not inconsistent with this Court's decision.
Footnote 1:During a recordedinterview, in which defendant generally described having consensual sex with the victim,he nonetheless described what he had done to her as "jackhammering away."
Footnote 2:Defendant makes thiscontention based upon the People's pretrial disclosure of interviews with persons whoconveyed that they had heard rumors of a previous sexual encounter.