| People v Bautista |
| 2017 NY Slip Op 01410 [147 AD3d 1214] |
| February 23, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v AntonioLopez Bautista, Appellant. |
Robert Gregor, Lake George, for appellant, and appellant pro se.
Karen Heggen, District Attorney, Ballston Spa (Gordon W. Eddy of counsel), forrespondent.
Clark, J. Appeal from a judgment of the County Court of Saratoga County (Scarano, J.),rendered July 29, 2013, upon a verdict convicting defendant of the crimes of assault in thesecond degree (two counts), attempted kidnapping in the second degree, sexual abuse in the firstdegree and criminal obstruction of breathing or blood circulation.
At roughly 2:30 a.m. on May 22, 2012, the victim drove her husband to a restaurant that hehad been hired to clean. As was their custom, the victim waited in the vehicle while her husbandwent inside the restaurant to turn on the lights and deactivate the alarm. As the victim sat alone inthe vehicle, defendant opened the driver side door, pulled the victim out of the vehicle andrepeatedly punched her. Defendant then dragged the victim to a sidewalk roughly 58 feet away,where he pinned the victim to the ground, continued to punch her, removed her shirt and bra,pulled her pants and underwear partially down and grasped her throat. The police, prompted by911 calls, arrived during the attack, and defendant fled. Defendant was ultimately found hiding innearby bushes.
Thereafter, defendant was charged with assault in the first degree, robbery in the first degree,attempted rape in the first degree, attempted kidnapping in the second degree, robbery in thesecond degree, sexual abuse in the first degree, two counts of assault in the second degree andcriminal obstruction of breathing or blood circulation. Following a nine-day jury trial, defendantwas convicted of attempted kidnapping in the second degree, both counts of assault in the second[*2]degree, sexual abuse in the first degree and criminalobstruction of breathing or blood circulation. County Court sentenced defendant to an aggregateprison term of 11 years, followed by 10 years of postrelease supervision. Defendant appeals.
Defendant challenges his conviction for sexual abuse in the first degree as being unsupportedby legally sufficient evidence and as against the weight of the evidence. As relevant here, aconviction for sexual abuse in the first degree requires proof that the defendant, by forciblecompulsion, subjected another person to sexual contact (see Penal Law§ 130.65 [1]). Sexual contact, in turn, is defined as "any touching of the sexual orother intimate parts of a person for the purpose of gratifying sexual desire of either party" andincludes, among other things, "the touching of the victim by the actor, whether directly orthrough clothing" (Penal Law § 130.00 [3]). Whether a defendant's actions weremotivated by a desire for sexual gratification can be inferred from the defendant's conduct, aswell as the surrounding circumstances (see People v Hayes, 104 AD3d 1050, 1054 [2013], lvdenied 22 NY3d 1041 [2013]; People v King, 79 AD3d 1277, 1279 [2010], lv denied 16NY3d 860 [2011]; People v Stewart,57 AD3d 1312, 1315 [2008], lv denied 12 NY3d 788 [2009], cert denied 558US 1116 [2010]).
At trial, the victim testified that defendant pinned her down, "ripped" her shirt and bra off,exposing her breasts, and "yank[ed]" her pants and underwear "down a short ways" as sherepeatedly pleaded with him to stop. The victim stated that she felt defendant's penis pressedagainst her body and that she heard defendant say in Spanish that he wanted sex. The victim'saccount was largely corroborated by the testimony of the responding police officer, as well assurveillance footage of the attack, which depicted defendant on top of the victim and, at onepoint, showed him throw something to the side. Contrary to defendant's contention, the foregoingproof, viewed in the light most favorable to the People (see People v Ramos, 19 NY3d 133, 136 [2012]; People vHayes, 104 AD3d at 1054), was legally sufficient to permit a rational jury to conclude thatdefendant's actions were motivated by a desire for sexual gratification and, thus, that he forciblysubjected the victim to sexual contact (see People v Kruppenbacher, 81 AD3d 1169, 1172-1173 [2011],lv denied 17 NY3d 797 [2011]; cf. Matter of Michael DD., 33 AD3d 1185, 1185-1186 [2006]; Matter of Najee A., 26 AD3d 258,258-259 [2006], lv denied 7 NY3d 703 [2006]).
Defendant asserts that certain inconsistencies rendered the victim's testimony incredible as amatter of law. However, the victim was thoroughly cross-examined on these inconsistencies andthey presented "classic credibility issue[s]," which the jury plainly resolved against defendant(People v Roach, 263 AD2d 763, 763 [1999], lv denied 93 NY2d 1045 [1999]; see People v Cridelle, 112 AD3d1141, 1143 [2013]; People vAllen, 13 AD3d 892, 894 [2004], lv denied 4 NY3d 883 [2005]). Moreover, thevictim's testimony was not contradicted by any compelling evidence and it was not "so unworthyof belief as to be incredible as a matter of law" (People v Wright, 214 AD2d 759, 762[1995], lv denied 86 NY2d 805 [1995] [internal quotation marks and citation omitted];see People v Cridelle, 112 AD3d at 1143; People v Fernandez, 106 AD3d 1281, 1285 [2013]). Defendanttestified that his attack on the victim was not sexually motivated; however, having independentlyweighed the evidence, while considering it in a neutral light and according deference to the jury'scredibility determinations (see People vThiel, 134 AD3d 1237, 1239 [2015], lv denied 27 NY3d 1156 [2016];People v Hayes, 104 AD3d at 1054), we cannot conclude that defendant's conviction forsexual abuse in the first degree was against the weight of the evidence (see People v Wright, 88 AD3d1154, 1157 [2011], lv denied 18 NY3d 863 [2011]; cf. Matter of Najee A.,26 AD3d at 258-259).
Defendant also argues that, together, a litany of trial errors deprived him of a fair trial. [*3]We disagree. Despite certain alleged gaps in the chain of custody,County Court properly ruled that the victim's shirt and pants were admissible, as the respondingpolice officer specifically described and identified the nonfungible clothing (see People vJulian, 41 NY2d 340, 343 [1977]; People v Shoga, 89 AD3d 1225, 1226 [2011], lv denied 18NY3d 886 [2012]; People v Roblee,83 AD3d 1126, 1127 [2011], lv denied 17 NY3d 809 [2011]). In addition, while theprosecutor tended to lead her witnesses and repeat questions, many of defendant's objectionswere sustained and, notwithstanding defendant's failure to request a curative instruction (see People v Murphy, 79 AD3d1451, 1453 [2010], lv denied 16 NY3d 862 [2011]), County Court instructed the jurythat questions were not evidence and to ignore the question if an objection was sustained.Defendant failed to preserve his further contention that he and another defense witness wereimproperly questioned as to defendant's national origin and understanding of the Englishlanguage (see People v Brown, 114AD3d 1017, 1020 [2014]; People vLewis, 46 AD3d 943, 946 [2007]). In any event, the prosecutor's brief exploration ofthese topics was warranted given that defendant claimed to have mistaken the victim for awoman who had persecuted his family in his hometown and asserted that he took too much coldmedicine before the attack because he could not read the dosage instructions (see People vLewis, 46 AD3d at 946; People v Sylvers, 149 AD2d 920, 920 [1989], lvdenied 74 NY2d 747 [1989]; People v Kong, 131 AD2d 783, 784 [1987], lvdenied 70 NY2d 801 [1987]). Finally, defendant failed to preserve most of his challenges tothe prosecutor's summation (see Peoplev Perkins, 24 AD3d 890, 891 [2005], lv denied 6 NY3d 816 [2006]), which, inany event, are unavailing. To the extent that the prosecutor improperly commented on thevictim's medical records, any such error was harmless inasmuch as the records were solelyrelevant to charges of which defendant was ultimately acquitted (see id.; People v Baker, 4 AD3d 606,608-609 [2004], lvs denied 2 NY3d 795 [2004]). In short, while the prosecutor'sperformance may have been imperfect, we remain unpersuaded that defendant was deprived of afair trial.
Defendant further contends that his conviction for attempted kidnapping in the second degreemerged with his convictions for sexual abuse in the first degree and assault in the second degree.Although defendant failed to preserve this argument for our review (see CPL 470.05 [2];People v Hanley, 20 NY3d 601,606 [2013]), we will invoke our interest of justice jurisdiction to take corrective action(see CPL 470.15 [6] [a]; Peoplev Blair, 25 AD3d 1018, 1018 [2006], lv denied 6 NY3d 846 [2006]). The mergerdoctrine bars convictions for kidnapping "based on acts which are so much the part of anothersubstantive crime that the substantive crime could not have been committed without such actsand that independent criminal responsibility may not fairly be attributed to them" (People vCassidy, 40 NY2d 763, 767 [1976]; accord People v Bussey, 19 NY3d 231, 237 [2012]; People vCain, 76 NY2d 119, 125 [1990]). While application of the doctrine is dependent on theparticular facts and circumstances of each case, "a kidnapping is generally deemed to merge withanother offense . . . 'where there is minimal asportation immediately preceding' theother crime or 'where the restraint and underlying crime are essentially simultaneous' "(People v Hanley, 20 NY3d at 606, quoting People v Gonzalez, 80 NY2d 146,153 [1992]; see People v Robinson,101 AD3d 1245, 1246 [2012], lv denied 20 NY3d 1103 [2013]).
Here, the victim's testimony, as well as the surveillance footage, established that defendantimmediately began punching the victim upon opening the door to her vehicle and that, afterdragging her roughly 58 feet, he continued to punch the victim while forcibly subjecting her tosexual contact. This brutal encounter lasted between three and four minutes. Under thesecircumstances, because the conduct underlying the charge of attempted kidnapping in the seconddegree was simultaneous to, and inseparable from, the conduct underlying the charges of sexualabuse in the first degree and assault in the second degree (see People v Gonzalez, 80NY2d at 153; People v Perez, 93AD3d 1032, 1033 [2012], lv denied 19 NY3d 1000 [2012]), we must [*4]apply the doctrine of merger, reverse defendant's conviction ofattempted kidnapping in the second degree and dismiss that count of the indictment (seePeople v Cassidy, 40 NY2d at 767-768; People v James, 114 AD3d 1202, 1203-1204 [2014], lvdenied 22 NY3d 1199 [2014]; People v Blair, 25 AD3d 1018, 1019 [2006], lv denied 6NY3d 846 [2006]; People vSwansbrough, 22 AD3d 877, 878 [2005]; compare People v Smith, 47 NY2d 83,87-88 [1979]).
Defendant's remaining contentions, including his claim of ineffective assistance of counseland his assertion that attempted kidnapping in the second degree, assault in the second degreeand criminal obstruction of breathing or blood circulation are inclusory concurrent counts ofsexual abuse in the first degree, have been examined and determined to be without merit.
Peters, P.J., Lynch, Devine and Aarons, JJ., concur. Ordered that the judgment is modified,as a matter of discretion in the interest of justice, by reversing defendant's conviction ofattempted kidnapping in the second degree under count four of the indictment; said countdismissed and the sentence imposed thereon vacated; and, as so modified, affirmed.