| People v Glass |
| 2017 NY Slip Op 03809 [150 AD3d 1408] |
| May 11, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v DonaldGlass, Appellant. |
Paul J. Connolly, Delmar, for appellant.
P. David Soares, District Attorney, Albany (Michael C. Wetmore of counsel), forrespondent.
Devine, J. Appeal from a judgment of the County Court of Albany County (Herrick, J.),rendered February 2, 2015, upon a verdict convicting defendant of the crimes of rape in the firstdegree and criminal sexual act in the first degree (two counts).
On the evening of July 25, 2010, the victim was sexually assaulted while outdoors feedingcats in the City of Albany. The victim escaped from her assailant, who fled before police arrivedand could not be located. An investigation eventually pointed toward defendant as the perpetratorand, in 2013, he was charged in an indictment with rape in the first degree and two counts ofcriminal sexual act in the first degree. Defendant proceeded to trial and was convicted as chargedby a jury. County Court then sentenced defendant, as a second felony offender, to an aggregateprison term of 60 years and 20 years of postrelease supervision.[FN1] Defendant now appeals.
We affirm. Defendant begins by arguing that the verdict was against the weight of theevidence. Inasmuch as acquittal was a reasonable possibility, we are obliged to conduct a weightof the evidence review in which we "weigh conflicting testimony, review any rational inferencesthat may be drawn from the evidence and evaluate the strength of such conclusions" in order to"decide[ ] whether the jury was justified in finding the defendant guilty beyond a reasonabledoubt" (People v Danielson, 9NY3d 342, 348 [2007]; accordPeople v Kancharla, 23 NY3d 294, [*2]303 [2014]).Defendant does not dispute that the attack itself occurred and that the assailant forced his penisinto the victim's mouth, then endeavored to vaginally and anally rape her. He instead argues thatthe findings that he was the assailant and accomplished the act of rape in the first degree were notsupported by the credible proof.
With regard to the question of identity, the victim did not know her attacker. The victimidentified defendant as the attacker at trial but, as defendant points out, there was some reason toquestion that identification. During the investigation, the victim was shown numerousphotographs of men who matched her description of the attacker, including one of a man whowas not defendant that she thought resembled her attacker. That being said, when investigatorseventually spoke to defendant, he admitted that he was "always down" near where the attackoccurred and did not remember much of what he did in the summer of 2010 due to his alcoholconsumption. Defendant also gave a DNA sample and, while there was not a conclusive matchbetween his DNA and genetic evidence recovered in the aftermath of the attack, testing pointedto him as a potential contributor to the recovered genetic material. For example, the male DNAfound in samples taken from a hat left at the scene by the attacker and from the victim's mouthwere examined and found to be consistent with that of defendant and his paternal line, a state ofaffairs true for one in 5,236 men. There was, in short, a good deal of proof pointing to defendantas the assailant.
With regard to the issue of penetration, defendant was charged with committing first degreerape by "engag[ing] in sexual intercourse with another person . . . [b]y forciblecompulsion" (Penal Law § 130.35 [1]), sexual intercourse having "its ordinarymeaning and occur[ring] upon any penetration, however slight" (Penal Law§ 130.00 [1]). The victim testified in no uncertain terms that defendant inserted hispenis about "half an inch" into her vagina and that she "squeezed him out." The nurse whoconducted a sexual assault examination of the victim soon after the attack also testified to herobservations of abrasions and other internal vaginal injuries. This proof was more than ample toshow that the requisite penetration occurred so as to complete the charged rape (see e.g.People v White, 185 AD2d 472, 473 [1992], lv denied 80 NY2d 935[1992]).[FN2] The jurycredited the proof that defendant was the attacker and completed a rape and, "[u]pon ourindependent review of the record, and according the jury due deference in its resolution ofcredibility issues," we cannot say that the verdict was against the weight of the evidence (People v Newkirk, 75 AD3d 853,856 [2010], lv denied 16 NY3d 834 [2011]; see People v VanDeusen, 129 AD3d 1325, 1326 [2015], lvdenied 26 NY3d 972 [2015]).
Defendant also asserts that defense counsel was ineffective at trial. Defendant frequented arescue shelter near the scene of the crime and complains that the shelter records, which werestipulated into evidence subject to redaction, were not sufficiently redacted to remove referencesto his bad behavior at the shelter. Inasmuch as defense counsel "succeeded in achieving certainredactions" and a proper limiting instruction was given to the jury, we are unpersuaded that"defense counsel provided less than meaningful representation with respect to [*3]the" records (People v Santiago, 22 NY3d 740, 750 [2014]; see People v Thomas, 53 AD3d1099, 1100 [2008], lv denied 11 NY3d 795 [2008]). Likewise, while defendant'sidentity was at issue, County Court instructed the jury that the People were obliged to provedefendant's identity beyond a reasonable doubt, and defense counsel was not ineffective in failingto request an additional instruction (see People v Knight, 87 NY2d 873, 874-875 [1995];People v Cherry, 46 AD3d1234, 1237 [2007], lv denied 10 NY3d 839 [2008]).
Defense counsel was also not ineffective in failing to object to the allegedly impropercharacterization of DNA evidence made in the People's summation. As noted above, DNAevidence pointed to, but did not establish, defendant as the perpetrator. The People's summation,while largely appropriate in dealing with the import of the DNA evidence, did overstate thatdefendant's "DNA [was] on the evidence" and that the isolated male DNA belonged to defendant"or his identical twin." The problematic comments, however, were made in response to criticismsoffered by the defense in summation that the isolated male DNA recovered was never comparedto the DNA of another potential suspect. The People argued that the comparison was notnecessary because other markers on his DNA ruled the potential suspect out as a contributor, andthe objectionable comments referred to the trial testimony of a forensic scientist on that issue.Accordingly, even if the People's comments "exceeded what would be considered to be a fairresponse to defense counsel's closing argument or fair comment on the evidence," the context inwhich they were made establishes that they "did not rise to the flagrant and pervasive level ofmisconduct which would deprive defendant of due process" (People v Robinson, 16 AD3d 768, 770 [2005], lv denied 4NY3d 856 [2005]; see People vCollier, 146 AD3d 1146, 1151 [2017]; cf. People v Wright, 25 NY3d 769, 780-785 [2015]; People v Rozier, 143 AD3d 1258,1260 [2016]). Nothing in the foregoing shows ineffective assistance and, after reviewingcounsel's performance in its totality and at the time of the representation, we are satisfied thatdefendant received meaningful representation (see People v Clark, 28 NY3d 556, 562-563 [2016]; People v Ackerman, 141 AD3d948, 950 [2016], lv denied 28 NY3d 1181 [2017]).
Defendant contends that he was deprived of a fair trial due to the purported mistakes thatundergird his ineffective assistance claim, but that argument is both unpreserved and withoutmerit (see People v Collier, 146 AD3d at 1151). Lastly, defendant has not accepted anyresponsibility for the abhorrent acts he was convicted of committing, acts that represent only thelatest episode in a deplorable criminal career dating back 40 years, and we do not view theaggregate sentence imposed to be harsh or excessive (see People v Blackman, 90 AD3d 1304, 1310-1311 [2011], lvdenied 19 NY3d 971 [2012]; People v Jones, 216 AD2d 612, 612 [1995], lvdenied 86 NY2d 796 [1995]; cf.People v Charles, 124 AD3d 986, 988 [2015], lv denied 25 NY3d 950[2015]).
Peters, P.J., Garry, Mulvey and Aarons, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1:Defendant's aggregate sentenceis reduced, by operation of law, to 50 years in prison (see Penal Law § 70.30[1] [e] [vi]).
Footnote 2:The only reasonable view of thisproof was that sufficient penetration had occurred to complete the rape, even if the victim'sactions left defendant unable to fully insert his penis into her vagina. Accordingly, County Courtdid not err in refusing to charge the jury regarding the lesser included offense of attempted rapein the first degree (see People v Kinnard, 98 AD2d 845, 847 [1983], affd 62NY2d 910 [1984]; cf. People vNewkirk, 75 AD3d 853, 858 [2010], lv denied 16 NY3d 834 [2011]).