| People v Manigault |
| 2017 NY Slip Op 03569 [150 AD3d 1331] |
| May 4, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Henry Manigault Jr., Appellant. |
Sandra M. Colatosti, Albany, for appellant.
P. David Soares, District Attorney, Albany (Emily A. Schultz of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the County Court of Albany County (Lynch, J.),rendered January 26, 2015, upon a verdict convicting defendant of the crimes of strangulation inthe second degree (three counts), assault in the third degree, unlawful imprisonment in thesecond degree and rape in the third degree.
Defendant and the victim began dating and living together in April 2013. In November 2013,the victim reported an incident that occurred the previous night where she alleged, among otherthings, that defendant had raped her. As a result of the investigation of that and other instances,defendant was ultimately charged with criminal sexual act in the first degree, criminal sexual actin the third degree, assault in the third degree, unlawful imprisonment in the second degree, rapein the third degree and three counts of strangulation in the second degree. After defendant's trial,the jury found him not guilty of criminal sexual act in the first degree and criminal sexual act inthe third degree but guilty of the remaining charges. County Court sentenced defendant to fouryears in prison to be followed by five years of postrelease supervision on each conviction ofstrangulation in the second degree, one year in jail on his conviction of assault in the thirddegree, one year in jail on his conviction of unlawful imprisonment in the second degree and fouryears in prison followed by 10 years of postrelease supervision on his conviction of rape in thethird degree, all sentences to run concurrently. Defendant appeals.
Initially, we agree with defendant that, due to the fact that it was multiplicitous to eithercount 3 or count 4 of the indictment, defendant's conviction for strangulation in the second [*2]degree under count 5 of the indictment cannot be sustained and isagainst the weight of the evidence.[FN*] "As a general rule, . . . where adefendant, in an uninterrupted course of conduct directed at a single victim, violates a singleprovision of the Penal Law, he [or she] commits but a single crime" (People v Alonzo, 16 NY3d 267,270 [2011]; accord People vFlanders, 25 NY3d 997, 1000 [2015]). Initially, the record evidence establishes twodistinct episodes in which defendant strangled the victim, between which the victim left thehome in an attempt to escape defendant's abuse—an escape thwarted by defendantdepriving the victim of her car keys. As the record readily establishes that these twostrangulations did not occur in an uninterrupted course of conduct, we reject defendant'scontention that there was only evidence of one uninterrupted strangulation and that count 4 of theindictment was multiplicitous of count 3 of the indictment (see People v Garcia, 141 AD3d 861, 865 [2016], lv denied28 NY3d 929 [2016]). Nonetheless, beyond the victim's conclusory testimony that there was athird event of strangulation, the record does not contain any factual explanation of this event thatwould allow for a reasonable conclusion that it was not part of an uninterrupted course ofconduct in regard to either count 3 or count 4 of the indictment. Accordingly, as there isinsufficient evidence from which to conclude that defendant's conviction on count 5 of theindictment was not part of an uninterrupted occurrence in regard to the conduct for which he wasconvicted in either counts 3 or 4 of the indictment (see generally People v Alonzo, 16NY3d at 271), defendant's conviction under count 5 of the indictment is against the weight of theevidence and therefore must be reversed and the count dismissed.
As to defendant's remaining contention regarding the convictions for strangulation in thesecond degree, the victim's testimony established that she was gasping for air, suffered fromnarrowed vision and felt dizzy as a result of defendant repeatedly choking her. This evidence waslegally sufficient to establish that defendant caused the requisite "stupor" in strangling the victim,and, deferring to the jury's credibility determinations, the conclusion that defendant inflicted sucha stupor is not against the weight of the evidence (Penal Law § 121.12; see generally People v Haardt, 129AD3d 1322, 1323 [2015]; People vCox, 129 AD3d 1210, 1212 [2015], lv denied 26 NY3d 966 [2015]).
Defendant's contention that the victim did not clearly express an unwillingness to engage insexual intercourse with him is without merit. In regard to consent, "the proper inquiry for thefactfinder is not whether a defendant actually perceives a lack of consent, but whether the victim,by words or actions, clearly expresses an unwillingness to engage in the sexual act in such a waythat a neutral observer would have understood that the victim was not consenting" (People v Newton, 8 NY3d 460,464 [2007]). Whether a person's words or acts express a lack of consent must be consideredunder "all the circumstances" (Penal Law § 130.05 [2] [d]). Here, defendant had,over the course of the day, physically abused the victim, strangled her to near unconsciousness,confined her and made death threats towards her. During the same period, the victim verballycommunicated to him that she did not want to be in a relationship with him anymore andattempted to flee his presence, an escape that was thwarted only due to defendant depriving herof car keys. Considering these facts and given the victim's utter lack of participation in theintercourse that defendant thereafter initiated, a neutral observer would have understood that thevictim had clearly indicated her lack of consent. Accordingly, there is legally sufficient evidenceto support the conclusion that the victim did not consent to the intercourse, and, deferring to thejury's credibility determinations, the verdict as to rape in the third degree is [*3]not against the weight of the evidence (see People v Powell, 128 AD3d1174, 1176 [2015]).
Finally, and as the People concede, the respective postrelease supervision periods imposedon the convictions for strangulation in the second degree, five years, are illegal. Strangulation inthe second degree is a class D violent felony (see Penal Law § 70.02 [1][c]), and the permitted period of postrelease supervision is from 1
Peters, P.J., Egan Jr., Mulvey and Aarons, JJ., concur. Ordered that the judgment is modified,on the law and the facts, by (1) reversing defendant's conviction of strangulation in the seconddegree under count 5 of the indictment and (2) vacating the periods of postrelease supervisionimposed upon defendant's convictions of strangulation in the second degree under counts 3 and 4of the indictment; count 5 dismissed, the sentence imposed thereon vacated and matter remittedto the County Court of Albany County for resentencing of the periods of postrelease supervisionon counts 3 and 4; and, as so modified, affirmed.
Footnote *:Defendant failed to preserve alegal insufficiency argument as to the multiplicity of the strangulation in the second degreecounts.