| People v Case |
| 2017 NY Slip Op 03638 [150 AD3d 1634] |
| May 5, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v Robert G.Case, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Caitlin M. Connelly of counsel), fordefendant-appellant.
Lori Pettit Rieman, District Attorney, Little Valley (Amber L. Kerling of counsel), forrespondent.
Appeal from a judgment of the Cattaraugus County Court (Ronald D. Ploetz, J.), renderedMarch 16, 2015. The judgment convicted defendant, upon a jury verdict, of rape in the firstdegree, assault in the second degree, strangulation in the second degree and unlawfulimprisonment in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously reversed on the lawand as a matter of discretion in the interest of justice, a new trial is granted on the first and sixthcounts of the indictment, the fourth count is dismissed, and the fifth count is dismissed withoutprejudice to the People to re-present any appropriate charges under that count to another grandjury.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofrape in the first degree (Penal Law § 130.35 [1]), assault in the second degree([felony assault] § 120.05 [6]), strangulation in the second degree(§ 121.12), and unlawful imprisonment in the first degree (§ 135.10),arising from allegations that he forcibly raped his estranged wife in the garage of their formermarital residence. Defendant failed to preserve for our review his challenge to the legalsufficiency of the evidence because "his motion for a trial order of dismissal was not specificallydirected at the grounds advanced on appeal" (People v Wright, 107 AD3d 1398, 1401 [2013], lv denied23 NY3d 1026 [2014]; see People v Gray, 86 NY2d 10, 19 [1995]). We neverthelessexercise our power to review his challenge as a matter of discretion in the interest of justice(see CPL 470.15 [6] [a]).
We agree with defendant that the conviction of felony assault and strangulation is notsupported by legally sufficient evidence with respect to the physical injury element (seegenerally People v Bleakley, 69 NY2d 490, 495 [1987]). The evidence submitted by thePeople, i.e., that the victim sustained minor pain, a one-centimeter bruise on her arm, and aswollen neck, is insufficient to establish either physical impairment or substantial pain(see Penal Law § 10.00 [9]; People v Coleman, 134 AD3d 1555, 1555-1556 [2015], lvdenied 27 NY3d 963 [2016]; Matter of Antonio J., 129 AD2d 988, 988 [1987]; cf. People v Delaney, 138 AD3d1420, 1421 [2016], lv denied 28 NY3d 928 [2016]). Consequently, the felony assaultcount must be dismissed. With respect to the strangulation count, we conclude that the evidenceis legally sufficient to support a conviction of the lesser included offense of criminal obstructionof breathing or blood circulation (Penal Law § 121.11). Because there must be anew trial for the reasons discussed below, however, count five of the indictment chargingdefendant with strangulation in the second degree is dismissed with leave to the People tore-present any appropriate charges under that count to another grand jury (see generallyPeople v Gonzalez, 61 NY2d 633, 635 [1983]).
Contrary to defendant's further contention, viewing the evidence in the light most favorableto the People (see People v Contes, 60 NY2d 620, 621 [1983]), we conclude that theevidence is legally sufficient to support the conviction of rape and unlawful imprisonment(see generally Bleakley, 69 NY2d at 495). Furthermore, viewing the evidence in light ofthe elements of the crimes of rape in the first degree and unlawful imprisonment as charged tothe jury (see People v Danielson, 9NY3d 342, 349 [2007]), we conclude that the verdict with respect to those crimes is notagainst the weight of the evidence (see generally Bleakley, 69 NY2d at 495).
Defendant failed to preserve for our review his contention that the conviction of unlawfulimprisonment must be dismissed based on the merger doctrine (see People v Hanley, 20 NY3d601, 605-606 [2013]). In any event, that contention is without merit (see People vSmith, 47 NY2d 83, 87 [1979]).
Defendant contends that County Court erred in precluding him from introducing evidencethat the victim had previously said, in effect, that she would accuse defendant of rape in order toobtain a divorce from him. Defendant contends that the court further erred in striking thetestimony of a witness regarding that statement. Any error in precluding that evidence andstriking that testimony is harmless because "the precluded testimony was essentially cumulativeof other evidence presented at trial . . . , and . . . defendant wasprovided a meaningful opportunity to present a complete defense" (People v Ramsey, 59 AD3d 1046,1048 [2009], lv denied 12 NY3d 858 [2009] [internal quotation marks omitted]; see People v Davis, 111 AD3d1302, 1304 [2013], lv denied 22 NY3d 1137 [2014]; see also People vHerring, 225 AD2d 1065, 1066 [1996], lv denied 88 NY2d 937 [1996]). Defendant'scontention that he was denied effective assistance of counsel by his attorney's failure to object orseek other corrective action with respect to those alleged errors "is raised for the first time in hisreply brief and therefore is not properly before us" (People v Sponburgh, 61 AD3d 1415, 1416 [2009], lvdenied 12 NY3d 929 [2009]; seePeople v Spears, 125 AD3d 1400, 1400 [2015], lv denied 25 NY3d 1172[2015]).
We reject defendant's contention that the court erred in denying his motion to discharge asworn juror. During the trial, that juror indicated to a court officer that a courtroom spectatorseated near the defense table had befriended the juror on social media, and was attempting tocontact the juror. The juror concluded that the spectator was attempting to contact him in order topersuade him to acquit defendant. In order to discharge a sworn juror, the court "must beconvinced that the juror's knowledge will prevent [him or] her from rendering an impartialverdict" (People v Buford, 69 NY2d 290, 299 [1987]). "On this record, we are unable toconclude that the court could have been 'convinced' . . . , based on any unequivocalresponses of the juror, that the juror was 'grossly unqualified to serve in the case' "(People v Telehany, 302 AD2d 927, 928 [2003], quoting CPL 270.35 [1]; cf. People vMaddox, 175 AD2d 183, 183 [1991]).
We agree with defendant, however, that the prosecutor engaged in misconduct on severaloccasions, and we reach defendant's unpreserved contention as a matter of discretion in theinterest of justice (see CPL 470.15 [6] [a]). Here, the prosecutor engaged in misconductduring her closing statement by repeatedly appealing to the jury's sympathy, asking the jury to dojustice and protect the victim by convicting defendant, bolstering the victim's credibility andinjecting the prosecutor's personal opinions into the trial. Perhaps most egregiously, in arguingthat the jury should reject defendant's testimony that he confessed falsely to the police because heneeded to use the bathroom, the prosecutor gave her personal opinion regarding defendant'scredibility by stating that she would sit in her own urine rather than falsely admit that shecommitted a crime. "We can only conclude herein that the prosecutor's 'inflammatory [commentshad] a decided tendency to prejudice the jury against the defendant' " (People v Ballerstein, 52 AD3d1192, 1194 [2008], quoting People v Ashwal, 39 NY2d 105, 110 [1976]).Consequently, we conclude that the cumulative effect of the prosecutorial misconduct, whichsubstantially prejudiced defendant's rights (see generally People v Calabria, 94 NY2d519, 523 [2000]), requires reversal.
Furthermore, "[i]n light of the foregoing, we agree with defendant's related contention that hewas denied effective assistance of counsel owing to defense counsel's failure to object to theprosecutor's misconduct during summation" (People v Rozier, 143 AD3d 1258, 1260 [2016], citing People v Wright, 25 NY3d 769,780-783 [2015]). Defense counsel also failed to object when the prosecutor introduced evidenceof prior bad acts despite having failed to seek a ruling regarding the admissibility thereof, mostnotably the testimony of a sheriff's deputy that, months before this incident, defendant stole thevictim's truck and was arrested for driving it while intoxicated while on the way to attack aperson with whom he believed the victim was having an affair. Defense counsel also failed toobject when the prosecutor cross-examined defendant regarding that issue. Thus, reversal is alsorequired because defense counsel was ineffective in "fail[ing] to object to prejudicial evidence ofprior uncharged crimes and bad acts introduced by the prosecutor" (People v Wiggins,213 AD2d 965, 965 [1995]).
Contrary to defendant's further contention, however, the court did not err in refusing tosuppress his statements to the police. With respect to defendant's contention that he was toointoxicated to waive his rights, the record of the suppression hearing does not establish that, atthe time he waived his Miranda rights, he was intoxicated " 'to the degree ofmania, or of being unable to understand the meaning of his statements' " (People vSchompert, 19 NY2d 300, 305 [1967], cert denied 389 US 874 [1967]; see People v Beasley, 147 AD3d1549, 1550 [2017]; People vPeterkin, 89 AD3d 1455, 1455 [2011], lv denied 18 NY3d 885 [2012]). Withrespect to defendant's further contention that the interrogating officers used leading questions thatprompted him to waive his rights and undermined the voluntariness of the confession, "it cannotbe said that the interrogation was fundamentally unfair or that it induced defendant falsely toincriminate himself" (People v Salgado, 130 AD2d 960, 961 [1987], lv denied 70NY2d 754 [1987]; see generally Peoplev Gutierrez, 96 AD3d 1455, 1455 [2012], lv denied 19 NY3d 997 [2012]).Finally, with respect to defendant's contention that his statements were involuntary because hewas questioned over a two-hour period, it is axiomatic that the length of the interrogation period"does not, by itself, render the statement[s] involuntary" (People v Weeks, 15 AD3d 845, 847 [2005], lv denied 4NY3d 892 [2005]; see People vClark, 139 AD3d 1368, 1369 [2016], lv denied 28 NY3d 928 [2016]). Here,viewing "the totality of the circumstances surrounding the interrogation" (People v Knapp, 124 AD3d 36, 41[2014] [internal quotation marks omitted]), we conclude that "[t]he record of the suppressionhearing supports the court's determination that defendant knowingly, voluntarily and intelligentlywaived his Miranda rights before making the statement[s]" (People v Irvin, 111 AD3d 1294,1295 [2013], lv denied 24 NY3d 1044 [2014], denied reconsideration 26 NY3d930 [2015]; see People v Holland,126 AD3d 1514, 1515 [2015], lv denied 25 NY3d 1165 [2015]).
Defendant's further contentions are academic in light of our determination.Present—Whalen, P.J., Smith, Centra, Troutman and Scudder, JJ.