| People v Davis |
| 2017 NY Slip Op 02840 [149 AD3d 1246] |
| April 13, 2017 |
| Appellate Division, Third Department |
[*1](April 13, 2017)
| The People of the State of New York, Respondent, v DustinDavis, Appellant. |
Susan Patnode, Rural Law Center of New York, Castleton (Cynthia Feathers of counsel), forappellant.
Mary E. Rain, District Attorney, Canton (Matthew L. Peabody of counsel), forrespondent.
Devine, J. Appeal from a judgment of the County Court of St. Lawrence County (Richards,J.), rendered June 1, 2012, upon a verdict convicting defendant of the crimes of burglary in thesecond degree as a sexually motivated felony, sexual abuse in the second degree, forcibletouching and endangering the welfare of a child.
The victim (born in 1996) and her family had been evicted from their home and, in August2010, found themselves residing in a camper in the backyard of a family member's home. Thevictim was alone on the evening of August 3, 2010 when defendant—who had beenvisiting with friends at the nearby house—entered the camper without permission, awokeher and grabbed her breast and buttocks. She ran out of the camper in a disheveled state, alerted arelative and, in short order, her parents and the authorities had been notified of the incident.Defendant was eventually charged in an indictment with various offenses and, following a jurytrial, he was convicted of burglary in the second degree as a sexually motivated felony, sexualabuse in the second degree, forcible touching and endangering the welfare of a child. CountyCourt denied defendant's subsequent CPL 330.30 motion to set aside the verdict and sentencedhim, as a second felony offender, to an aggregate prison term of eight years to be followed bypostrelease supervision of 20 years. Defendant appeals and we now affirm.
Defendant asserts that the victim's testimony was incredible as a matter of law and that, as aresult, the verdict was not supported by legally sufficient evidence. The jury was made aware thatthe victim's trial testimony was inconsistent with her earlier accounts of the incident in severalrespects, such as the precise time that defendant accosted her, which breast he grabbed andwhether a bonfire was burning outside at the time. The victim had always maintained, however,that defendant entered the camper uninvited, awoke her, then groped one of her breasts and herbuttocks.
There was no physical evidence or eyewitness testimony confirming that the molestationoccurred, but the victim's account was corroborated in other respects at trial. For instance,defendant asked a trial witness if anyone was in the camper and, learning that the victim wasthere, walked over to and entered it a few minutes later. The same witness stated that he walkedover to the camper to see what defendant was doing and that, soon afterward, the partiallyclothed and visibly upset victim emerged from the camper and accused defendant of havingtouched her. Defendant promptly left the property but, before he did so, told another witness thathe "had to get out of there because he had a split personality." The victim's testimony wasaccordingly not "contradicted by any compelling evidence offered by defendant so as to render itunworthy of belief or establish a basis upon which to disturb the jury's resolution of thesecredibility issues" (People v Brooks,127 AD3d 1407, 1409 [2015] [internal quotation marks and citations omitted]; see People v Din, 110 AD3d 1246,1247 [2013], lv denied 22 NY3d 1137 [2014]). The foregoing proof illuminates a validpath of reasoning from which a rational person could infer "that defendant intended to commit acrime when he entered the [13-year-old] victim's home and did so for his own sexualgratification" and, as such, the jury's verdict is founded upon legally sufficient evidence in allrespects (People v Judware, 75AD3d 841, 845 [2010], lv denied 15 NY3d 853 [2010]; see Penal Law§§ 130.52, 130.60 [2]; 130.91 [1]; 140.25 [2]; 260.10 [1]; People v Danielson, 9 NY3d 342,349 [2007]).
Defendant also contends that, even if the victim's testimony could properly be considered, theverdict was against the weight of the evidence. It need only be said that, after reviewing the trial"evidence and considering it in a neutral light, while according deference to the jury's superiorability to evaluate credibility," we do not agree (People v Brooks, 127 AD3d at 1409;see People v Din, 110 AD3d at 1247-1248; People v Judware, 75 AD3d at845).
Turning to defendant's argument that County Court erred in refusing to give an intoxicationcharge to the jury, he failed to provide "requisite details tending to corroborate his claim ofintoxication, such as the number of drinks, the period of time during which they were consumed,the lapse of time between consumption and the event at issue, whether he consumed alcohol onan empty stomach, whether his drinks were high in alcoholic content, and the specific impact ofthe alcohol upon his behavior or mental state" (People v Gaines, 83 NY2d 925, 927[1994]; see People v Beaty, 22NY3d 918, 921 [2013]). Defendant had been drinking and smoking marihuana in the hoursbefore the incident, but there was no proof that tended to quantify his consumption ordemonstrate his impairment at the time the charged offenses occurred. Indeed, the trial evidencereveals acts by defendant that are suggestive of intent and not impairment, such as asking whowas in the camper and then walking over to it and seeking out the victim in bed (see People vBeaty, 22 NY3d at 921). Inasmuch as defendant provided little beyond the bare claim "thathe was intoxicated," County Court was correct to reject his request for an intoxication instruction(People v Gaines, 83 NY2d at 927; see People v Sturdevant, 74 AD3d 1491, 1493 [2010], lvdenied 15 NY3d 810 [2010]; People v Maxwell, 260 AD2d 653, 653-654 [1999],lv denied 93 NY2d 1004 [1999]).
As for defendant's contention that the verdict should have been set aside due to jurormisconduct, we are unpersuaded. Defendant relied, in relevant part, upon the claims of anindividual who had dated a juror's aunt and averred that the aunt had previously dated defendant,harbored a grudge against defendant and had engaged in conversations with the juror aboutdefendant's case while the trial was ongoing. County Court responded by holding a hearing inwhich it became clear that the ex-boyfriend made his accusations after an acrimonious breakupwith the aunt and had no direct knowledge of what, if anything, the aunt had done or said topersuade the juror to find defendant guilty. County Court therefore found the ex-boyfriend'stestimony to be incredible, leaving defendant's contentions of misconduct unsupported. CountyCourt further found that, notwithstanding its reservations regarding the testimony of the juror andher aunt, the two women credibly stated that there was no "scheme" to convict defendant and thatno one had attempted to improperly influence the juror during the trial. Thus, deferring to thecredibility assessments of County Court (see People v Douglas, 57 AD3d 1105, 1106 [2008], lvdenied 12 NY3d 783 [2009]), we perceive no abuse of discretion in its determination thatdefendant had not shown "improper conduct by a juror, or improper conduct by another person inrelation to a juror," that resulted in substantial prejudice to him (CPL 330.30 [2]; see People vRodriguez, 100 NY2d 30, 35-36 [2003]; People v Wilson, 93 AD3d 483, 485 [2012], lv denied 19NY3d 978 [2012]; People v Richardson, 185 AD2d 1001, 1002 [1992], lv denied80 NY2d 976 [1992]; cf. People vGiarletta, 72 AD3d 838, 839 [2010], lv denied 15 NY3d 750 [2010]).
Lastly, in view of the conduct for which defendant was convicted and his prior criminalhistory, the aggregate sentence imposed was not harsh or excessive.
McCarthy, J.P., Egan Jr., Lynch and Clark, JJ., concur. Ordered that the judgment isaffirmed.