| People v Ignatyev |
| 2017 NY Slip Op 01147 [147 AD3d 489] |
| February 14, 2017 |
| Appellate Division, First Department |
[*1](February 14, 2017)
| The People of the State of New York,Respondent, v Andrey Ignatyev, Appellant. |
Seymour W. James, Jr., The Legal Aid Society, New York (Allen Fallek of counsel), forappellant.
Cyrus R. Vance, Jr., District Attorney, New York (Ellen Stanfield Friedman of counsel), forrespondent.
Judgment, Supreme Court, New York County (Cassandra M. Mullen, J.), renderedSeptember 4, 2013, as amended September 24, 2013, convicting defendant, after a jury trial, ofcriminal sexual act in the first degree and sexual abuse in the first degree, and sentencing him toan aggregate term of 15 years, unanimously affirmed.
The court providently exercised its discretion in denying defendant's challenge for cause to aprospective juror. The panelist's responses to questioning by the attorneys and the court, viewedas a whole, provided an unequivocal assurance that he could keep an open mind and decide thecase impartially based on the evidence (see People v Chambers, 97 NY2d 417, 419[2002]; People v Dunkley, 61 AD3d428 [1st Dept 2009], lv denied 12 NY3d 914 [2009]). Contrary to defendant'scontention, the panelist's answers did not raise a "serious doubt" about his ability to apply thepresumption of innocence (People vToliver, 102 AD3d 411, 412 [1st Dept 2013] [internal quotation marks omitted], lvdenied 21 NY3d 1011 [2013]). In light of our conclusion, we need not reach the People'salternative argument that defendant had failed to exhaust his peremptory challenges.
After the victim's testimony, defendant sought to call an expert witness to testify about theimpact of alcohol on a person's memory, and the phenomenon of alcohol-induced "fragmentary"blackouts. The court denied defendant's request, finding that the proffered testimony wasspeculative and not beyond the ken of the ordinary juror. The court providently exercised itsdiscretion in excluding defendant's proffered expert testimony. The proposed testimony about thegeneral impact of alcohol on memory is within the ordinary experience and knowledge of jurors(People v Paro, 283 AD2d 669, 670 [3d Dept 2001] ["impact of intoxication on anindividual's mental state is presumed to be within the ordinary experience and knowledge ofjurors"], lv denied 96 NY2d 922 [2001]; People v Fish, 235 AD2d 578, 580 [3dDept 1997], lv denied 89 NY2d 1092 [1997]).
Defendant failed to sufficiently explain how the proffered testimony about fragmentaryblackouts was relevant to the particular circumstances of this case (see People v Bedessie, 19 NY3d147, 157 [2012]). Defendant did not establish an adequate factual foundation to support thetheory that the victim was experiencing a fragmentary blackout during the assault. In the absenceof a more-detailed proffer, the mere fact that the victim did not recall all of the details of theattack, or that there was a period prior to the assault that she did not remember, was insufficient,by itself, to show that she had suffered a fragmentary blackout. Thus, the application of theproffered testimony to the facts of the case was speculative. To the extent defendant is raising aconstitutional claim, that claim is unpreserved (see People v Lane, 7 NY3d 888, 889 [2006]), and we decline toreview it in the interest of justice. As an alternative holding, we reject it on the merits (seeCrane v Kentucky, 476 US 683, 689-690 [1986]).
In any event, any constitutional or nonconstitutional error in this regard was harmless in[*2]light of the overwhelming evidence of guilt (see People vCrimmins, 36 NY2d 230 [1975]). When the police showed defendant a picture of the victim,he stated, "[T]hat's the girl who I raped." The victim's testimony was corroborated by her 911 callmade immediately after the incident in which she reported that she had been raped. Further, thevictim made a prompt outcry to three other witnesses, who described her as sobbinguncontrollably, traumatized and frightened. Moreover, the victim had physical injuries consistentwith her testimony that defendant had struck her on the head with a glass bottle. Finally,defendant's testimony that all of the sexual acts were consensual was incredible.
We perceive no basis for reducing the sentence. Concur—Tom, J.P., Richter, Saxe,Gische and Gesmer, JJ.