| People v Ward |
| 2016 NY Slip Op 05518 [141 AD3d 853] |
| July 14, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vAndre Ward, Appellant. |
Paul J. Connolly, Delmar, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the County Court of Schenectady County(Giardino, J.), rendered June 19, 2014, upon a verdict convicting defendant of the crimesof predatory sexual assault, criminal sexual act in the first degree, strangulation in thesecond degree as a sexually motivated felony, criminal possession of a weapon in thethird degree, unlawful imprisonment in the second degree and menacing in the seconddegree.
Defendant was charged in a seven-count indictment with predatory sexual assault,criminal sexual act in the first degree, strangulation in the second degree as a sexuallymotivated felony, assault in the second degree as a sexually motivated felony, criminal[*2]possession of a weapon in the third degree, unlawfulimprisonment in the second degree and menacing in the second degree.[FN1] The charges stemmedfrom an incident that occurred during the early morning hours of May 5, 2013 onBrandywine Avenue between Union Street and Eastern Avenue in the City ofSchenectady, Schenectady County, at which time defendant allegedly forcibly compelledthe female victim to perform oral sex on him and, in the course thereof, brandished aknife and stabbed, choked and threatened to kill her. A lengthy jury trial ensued and, atthe close of the People's case-in-chief, County Court dismissed the assault count due tolegally insufficient evidence of physical injury. The jury convicted defendant of theremaining charges, and defendant thereafter was sentenced—in theaggregate—to a prison term of 20 years to life. Defendant now appeals.
Defendant initially contends that his conviction of strangulation in the second degreeas a sexually motivated felony is not supported by legally sufficient evidence and,further, that the verdict as a whole is against the weight of the evidence. We disagree.Insofar as is relevant here, "[a] person is guilty of predatory sexual assault when he orshe commits the crime of . . . criminal sexual act in the first degree. . . and when . . . [i]n the course of the commission of thecrime or the immediate flight therefrom, he or she . . . [u]ses or threatens theimmediate use of a dangerous instrument" (Penal Law § 130.95 [1] [b]; see People v Pena, 126 AD3d618, 618-619 [2015], lv granted 26 NY3d 1042 [2015]), such as a knife(see Penal Law § 10.00 [13]). As to the underlying crime, "[a]person is guilty of criminal sexual act in the first degree when he or she engages in oralsexual conduct . . . with another person . . . [b]y forciblecompulsion" (Penal Law § 130.50 [1]; see People v Simmons, 135 AD3d 1193, 1195 [2016],lv denied 27 NY3d 1006 [2016]). To convict defendant of strangulation in thesecond degree as a sexually motivated felony, "the People were required to prove that heapplied pressure to the throat or neck of the victim with the intent to impede her normalbreathing or circulation of blood, and thereby caused her to suffer stupor or loss ofconsciousness for any period of time, or any other physical injury or impairment" (People v Peterson, 118 AD3d1151, 1153 [2014], lv denied 24 NY3d 1087 [2014]; see Penal Law§§ 121.11, 121.12) and, further, that he committed this particularoffense (see Penal Law § 130.91 [2]) "for the purpose, in whole orsubstantial part, of his . . . direct sexual gratification" (Penal Law§ 130.91 [1]). Further, a person is guilty of criminal possession of a weaponin the third degree when he or she "possesses any . . . dangerous knife. . . or any other dangerous or deadly instrument or weapon with intent touse the same [*3]unlawfully against another" (Penal Law§ 265.01 [2]) and such person "has been previously convicted of any crime"(Penal Law § 265.02 [1]; see People v Gonzalez, 64 AD3d 1038, 1040 [2009], lvdenied 13 NY3d 796 [2009]).[FN2] Finally, "[a] person is guilty ofunlawful imprisonment in the second degree when he [or she] restrains another person"(Penal Law § 135.05; see People v Haardt, 129 AD3d 1322, 1323 [2015]), andone commits menacing in the second degree when "[h]e or she intentionally places orattempts to place another person in reasonable fear of physical injury, serious physicalinjury or death by displaying a . . . dangerous instrument" (Penal Law§ 120.14 [1]; seePeople v Colon, 116 AD3d 1234, 1238 [2014], lv denied 24 NY3d 959[2014]). A defendant's intent to commit a particular offense "may be inferred from [his orher] conduct and from the surrounding circumstances" (People v Knox, 137 AD3d1330, 1331 [2016] [internal quotation marks and citation omitted], lv denied27 NY3d 1070 [2016]; seePeople v Carte, 113 AD3d 191, 195 [2013], lv denied 23 NY3d 1035[2014]).
The record reflects that, on the evening of May 4, 2013, the victim went to a friend'shouse where she consumed "four or five of the 24-ounce cans" of Keystone Ice beer. Thevictim's friend eventually grew tired, but the victim wanted to continue drinking, so shecalled a cab with the intention of going to visit another friend. While she was waitingoutside for the cab to arrive (by then the early morning hours of May 5, 2013), the victimnoticed defendant standing nearby. The victim testified that she had seen—andhad engaged in brief conversations with—defendant, whom she knew as Dre,prior to this date as they "both associate[d] with the same people." When the cab finallyarrived, the victim, who acknowledged that she "was pretty loaded" at this point, enteredthe cab—as did defendant. The victim provided the cab driver with the address ofher friend and, approximately 15 minutes later, arrived at the intended destination. Thevictim then exited the cab and "just left"—apparently paying no attention todefendant's whereabouts.
When the victim discovered that her friend was not at home, she called yet anotherfriend and, finding that person awake, started walking to her friend's house to "drinkmore beer"—stopping along the way at a Getty gas station to purchase additionalalcoholic beverages. The Getty station was closed but, while there, the victim again sawdefendant. The victim then walked to a nearby Lukoil gas station where she successfullypurchased more beer. When the victim exited that gas station, defendant was standingoutside and asked her "[t]o go to his house [*4]to party."The victim, who denied having a prior sexual relationship with defendant, walked awayand "bl[ew] him off," but defendant continued to follow her and attempted to persuadeher "to go to his house."[FN3] When the victim told defendant to "f. . . off" and tried to walk away, defendant grabbed the victim from behindby her neck and a struggle ensued. As the victim continued to struggle, defendant pushedher down a driveway separating two nearby residences—forcing her to the rear ofthe property.
The victim testified that after she and defendant disappeared from the view of thestreet surveillance camera, defendant "started to get more violent." Specifically, thevictim stated that defendant "picked [her] up by [her] neck and started to strangle [her]for quite a bit of time, hard enough to where [she] couldn't breathe anymore, and. . . long enough [to] where [she] thought [she] was going to die" and couldfeel her "eyes popping out of [her] head." At that point, defendant "let go" and the victimfell to her knees—"coughing . . . really hard," "spitting up a wholebunch of phlegm" and "trying to [be] able to breathe again." Defendant continued to pushthe victim toward the rear of the property and, when the victim "tried to get away,"defendant grabbed her by the arm so hard that she thought that her "arm was going tobreak." The victim begged defendant to stop, in response to which defendant told thevictim to "shut up" or he would kill her.
Upon reaching the rear of the property, defendant and the victim were—as thevictim described it—"blocked in," at which point—the victimtestified—defendant started walking her back toward the street. En route,defendant stopped, threw the victim against the wall of a residence, began choking heragain and, at some point, pulled out a knife and stabbed her in the leg. As the victim"slouched down," defendant punched her in the side of the head "really, reallyhard"—causing her to "s[ee] stars" and feel "discombobulated." Thereafter, whileholding the victim against the wall with one hand, defendant unzipped his pants with theother and forced the victim to perform oral sex.[FN4] When he was finished, defendantgrabbed the victim by the neck and dragged her across the street to a nearby parking lot.As defendant and the victim were crossing the parking lot, they observed a police car; inresponse, defendant loosened his grip and the victim ran away.
[*5] The victim's testimony was corroborated to varyingdegrees by, among other things, the aforementioned video surveillance, which depicted aportion of the interaction between the victim and defendant on the morning in question,as well as the testimony of an individual who lived near the scene of the incident. Thewitness testified that, while working on her computer early that morning, she heard anoise, "looked outside and . . . saw a woman crying and this bigger man,African-American man, . . . grabbing her forearms . . . [and]pulling her out of . . . view." According to this witness, the woman was"sobbing," "had an obvious look of distress on her face" and was "pulling back" from herassailant. The witness further testified that, as this encounter unfolded, she heard thewoman say "No." In response, the witness made two phone calls to 911, and members ofthe City of Schenectady Police Department thereafter arrived at the scene. One of theresponding officers recovered a knife from defendant's person, and another testified thatdefendant, while still at the scene of the incident, admitted to engaging in a sexualencounter with the victim and to placing his hands around the victim's neck and chokingher—with defendant claiming that the victim "offered to give a blowjob formoney," that "he was [only] guilty of getting some head" and that "he could have swor[n]that she said to . . . choke her."[FN5] Testimony also was adduced from themedical personnel who treated the victim following this incident. In addition to theforegoing, audio recordings of defendant's statements to officers at the scene, togetherwith the transcripts thereof, as well as photographs taken of both the victim and the scenefollowing this incident and the victim's medical records, were received intoevidence.
Contrary to defendant's assertion, we are satisfied that his conviction of strangulationin the second degree as a sexually motivated felony is supported by legally sufficientevidence. As to defendant's weight of the evidence claims, although a different verdictwould not have been unreasonable, we find—upon reviewing the evidencepreviously discussed and granting deference to the jury's credibilitydeterminations—that the jury's verdict as to each of the sustained charges is inaccord with the weight of the evidence adduced at trial. Specifically, the [*6]testimony of the victim, wherein she described the mannerin which defendant grabbed, dragged, restrained and choked her, threatened her with aknife and compelled her to perform oral sex, together with the video surveillancefootage, the photographic evidence, the medical evidence, the testimony offered by thewitness who heard the victim sobbing and saw her pull back from her assailant, thetestimony of the responding officers, the knife recovered from defendant's person anddefendant's admission that he and the victim engaged in a sexual encounter and that hechoked her, established each of the required elements of predatory sexual assault,strangulation in the second degree as a sexually motivated felony, criminal sexual act inthe first degree, criminal possession of a weapon in the third degree, unlawfulimprisonment in the second degree and menacing in the second degree.
That said, we find merit to defendant's claim that he was deprived of a fair trial dueto County Court's erroneous Molineux ruling—specifically, the court'sdecision to permit the People to introduce evidence on their case-in-chief of a prioralleged sexual assault perpetrated by defendant against another woman (hereinafter theprevious victim) in May 2011. Prior to trial, and in the context of their Sandovalapplication, the People sought to introduce proof of defendant's 2011 conviction ofassault in the third degree—a conviction that had its genesis in the alleged sexualassault of the previous victim.[FN6] County Court fashioned aSandoval compromise—advising the People that, if defendant elected totestify, the People could use this conviction for impeachment purposes oncross-examination, but they would not be permitted to inquire as to the underlying facts.The People also, however, sought to utilize those underlying facts in the context of theirMolineux application—seeking to introduce evidence on theircase-in-chief that, in May 2011, defendant sexually assaulted the previous victim in aremarkably similar fashion as the manner in which he attacked the victim here. In sodoing, the People argued that such proof was relevant to the issues of identity, modusoperandi, intent and lack of consent. Defendant opposed the People's application,contending that such proof did not fall within any of the recognized Molineuxexceptions and, in any event, that the probative value of such evidence was vastlyexceeded by its prejudicial effect. Although acknowledging that it was "a close call,"County Court granted the People's Molineux application on this point, findingthat such proof was probative of identity, intent and lack of consent. As a result, thePeople called the previous victim to testify as part of their case-in-chief.
Once on the stand, the previous victim recounted—at length and overdefendant's [*7]continued objection—the details ofher May 12, 2011 encounter with defendant. Specifically, the previous victim testifiedthat, on the day in question, she and defendant, who were "friends with benefits," werehanging out in the hotel room where defendant then lived on Central Avenue in theTown of Colonie, Albany County. According to the previous victim, the plan was to"have sex first, then drink, then go to sleep." After taking a break to purchase more beer,the previous victim and defendant returned to the hotel room—where defendantexpressed his desire to again engage in sex. The previous victim testified that when sherebuffed defendant's overtures, defendant "became angry"; as she started to leave theroom, defendant hit her "upside [her] head and . . . knocked [her] to thefloor." According to the previous victim, defendant then straddled her—as she waslying face down on the floor—and continued to hit her face and head. When sherolled onto her back, defendant allegedly covered her mouth and nose with his hands,placed his hands across her throat, "pulled out a knife," held the knife to her face andsaid that he was going to kill her. The previous victim testified that this encounter lastedapproximately two hours, during which time she attempted to engage in sexual activitywith defendant in an unsuccessful effort to appease him. Eventually, the previous victim"jumped up, grabbed [her] clothes and ran out the door, naked, onto Central Avenue."Law enforcement was notified, defendant was arrested and the resulting plea to assault inthe third degree followed. In addition to the previous victim's testimony, County Courtallowed the People to enter into evidence—again over defendant'sobjection—photographs taken shortly after this incident, which depicted theinjuries that she had sustained.
Subject to certain limitations imposed by the trial court, Sandoval permits thePeople to use "prior convictions or proof of the prior commission of specific criminal,vicious or immoral acts for the purpose of impeaching a defendant's credibility" oncross-examination—should such defendant elect to take the stand and testify attrial (People v Sandoval, 34 NY2d 371, 374 [1974]). Molineux, on theother hand, allows the People to introduce on their case-in-chief evidence of adefendant's prior uncharged crimes or bad acts—assuming, among other thingsand as a threshold matter, that such proof falls within one of the recognizedMolineux exceptions (see People v Molineux, 168 NY 264, 293 [1901]).Although evidence proffered under Sandoval and Molineux servesdistinctly different purposes and is admissible in equally different fashions, theoverarching inquiry and analysis is the same—namely, whether the probativevalue of such evidence outweighs its prejudicial effect. Despite the dissimilarities as tothe manner in which the proffered evidence may be admissible at trial underSandoval or Molineux—or perhaps because the same balancingtest must occur in either instance—there does not appear to be any prohibitionagainst allowing the People to utilize the same criminal transaction as the basis for bothits Sandoval and Molineux applications (see generally People vRobinson, 239 AD2d 258 [1997]). The problem in this case arose not as a result ofthe People's dual use of defendant's encounter with the previous victim but, rather, wasoccasioned by County Court's ruling with respect to the People's Molineuxproffer. Simply put, "the protections afforded by [County [*8]Court's] Sandoval ruling were largely evisceratedby the court's [decision to] allow[ ] this evidence on the People's direct case" (id.at 259).
"Evidence of similar uncharged crimes has probative value, but as a general rule it isexcluded for policy reasons because it may induce the jury to base a finding of guilt oncollateral matters or to convict a defendant because of his or her past" (People v Nicholas, 130 AD3d1314, 1316 [2015] [internal quotation marks, brackets and citations omitted]; accord People v Magee, 135AD3d 1176, 1181 [2016]). That said, "evidence of uncharged crimes or prior badacts may be admitted where they fall within the recognized Molineuxexceptions—motive, intent, absence of mistake, common plan or scheme andidentity—or where such proof is inextricably interwoven with the charged crimes,provides necessary background or completes a witness's narrative and, further, the trialcourt . . . determines that the probative value of such evidence outweighs itsprejudicial effect" (People vRivera, 124 AD3d 1070, 1073 [2015] [internal quotation marks, brackets,ellipsis and citations omitted], lv denied 26 NY3d 971 [2015]). Here, evenassuming, without deciding, that the previous victim's testimony at trial and thecorresponding photographs fall within one or more of the aforementionedMolineux exceptions, we agree with defendant that the prejudicial effect of suchevidence far outweighs its probative value and, therefore, the People should not havebeen permitted to introduce such evidence on their case-in-chief.
The prosecutor herself acknowledged that there were "striking similarities" betweenthe incident involving the victim here and the incident in the hotel room involving theprevious victim and, while it is true that a defendant cannot seek to preclude relevant andprobative evidence simply because it demonstrates that he or she has a tendency tocommit certain crimes in a particular fashion, the prejudice posed by the previousvictim's testimony here is manifest. To be sure, there is no question—given thevideo footage obtained from the street camera—that defendant and the victimwere together on the morning in question and—in light of defendant's admissionsto the responding officers—that he and the victim engaged in a sexual act at thattime. However, the precise nature of that sexual act, i.e., whether it was consensual orwas procured by forcible compulsion, was one of the key issues for the jury toresolve—an issue that, in turn, hinged largely upon the credibility of the victim.Although the jury chose to credit the victim's account of the events that had transpiredthat morning (and we defer to the jury on this point), the fact remains that there werecertain inconsistencies in the victim's testimony—inconsistencies that the jury maywell have discounted upon hearing the previous victim's testimony that she, too, was thevictim of a very similar sexual assault that purportedly was perpetrated by defendant. Inother words, whatever doubts the jury may have had regarding the victim's credibilitymay have been laid to rest once they were presented with additional proof that, in sumand substance, defendant had a propensity—when his sexual advances wererejected—to turn violent, choke, pull a knife on and forcibly compel his partnersto engage in sexual [*9]activity. To our analysis, theprevious victim's testimony was highly prejudicial, as it related to a relatively recent priorbad act that was nearly identical to the incident underlying the crimes for whichdefendant was on trial. Hence, County Court erred in permitting the People to proffersuch proof on their case-in-chief. Further, in light of the fact that this case largelycentered upon the credibility of the victim, "we cannot characterize the error in admittingthis evidence as harmless, notwithstanding County Court's [limiting] instruction[s]"(People v Magee, 135 AD3d at 1181). Accordingly, we must reverse thejudgment of conviction and remit this matter for a new trial.[FN7]
Finally, given our remittal, defendant's asserted Batson violation, his claimthat—once he was convicted of predatory sexual assault—his conviction ofcriminal sexual act in the first degree should have been dismissed as a lesser inclusoryconcurrent offense and his challenge to the sentence imposed as harsh and excessive areacademic. Defendant's remaining contentions, including those addressed to certain ofCounty Court's evidentiary rulings, have been examined and found to be lacking inmerit.
Lahtinen, J.P., Lynch, Devine and Mulvey, JJ., concur. Ordered that the judgment isreversed, on the law, and matter remitted to the County Court of Schenectady County fora new trial.
Footnote 1:The indictmentoriginally—and erroneously—charged defendant with unlawfulimprisonment in the third degree. The People thereafter realized the error, and CountyCourt—with defendant's consent—granted the People's motion to amendthe indictment.
Footnote 2:Defendant was arraignedon a special information alleging that he previously had been convicted of the crime ofcriminal trespass in the second degree and admitted the prior conviction; hence, thiselement of the offense was established (see People v Wright, 134 AD3d 1299, 1300 [2015]).
Footnote 3:Video surveillance froma nearby street camera depicts the victim and defendant walking side-by-side forapproximately seven minutes and, during a portion of this time, the victim is observedholding defendant's long-sleeve shirt in her hands.
Footnote 4:The victim testified thatshe did not consent, nor did she offer to perform oral sex in exchange for either money orbeer.
Footnote 5:Defendant offered acontrary version of these events after he was advised of his rights and interviewed at thepolice station, at which time he denied that he had engaged in oral sex with the victim onthe morning in question. Although admitting that he had engaged in sexual encounterswith the victim on "several different occasions" in the past and that he entered the alleythat morning for the purpose of getting a "blowjob," he insisted that "nothinghappened"—he and the victim did not have sex, he did not choke her and he didnot pull a knife on her—because the victim was "bugging out" about going tomeet some "trick."
Footnote 6:The record suggests thatdefendant was not charged with any sex-related offenses relative to the 2011 incident;rather, it appears that defendant was charged with and pleaded guilty to only assault inthe third degree.
Footnote 7:The exclusion of suchproof does not alter our weight of the evidence analysis. Hence, defendant is entitled to anew trial, not dismissal of the indictment.