| People v Mesko |
| 2017 NY Slip Op 03810 [150 AD3d 1412] |
| May 11, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v Peter J.Mesko, Appellant. |
Cheryl Coleman, Albany, for appellant.
Matthew VanHouten, District Attorney, Ithaca (Alyxandra Stanczak of counsel), forrespondent.
Devine, J. Appeal from a judgment of the County Court of Tompkins County (Cassidy, J.),rendered March 27, 2015, upon a verdict convicting defendant of the crimes of burglary in thesecond degree and sexual abuse in the first degree.
In the early morning hours of March 30, 2013, defendant was attending a house party in theCity of Ithaca, Tompkins County. The victim's girlfriend resided at the house, and the two hadretired to the girlfriend's bedroom in lieu of participating in the festivities. The two womenawoke around 4:45 a.m. to find a man they later identified as defendant having climbed ontotheir bed and mounted the victim from behind. He was shoved off of the victim by her girlfriendand the women fled, with the victim's girlfriend briefly returning to take two photographs ofdefendant with her cell phone.
The victim reported the incident to authorities the same day and, following an investigation,defendant was charged in a three-count indictment with rape in the first degree, burglary in thesecond degree and sexual abuse in the first degree. The ensuing trial ended with the jurydeadlocking on the rape count, but convicting defendant of burglary in the second degree andsexual abuse in the first degree. County Court sentenced defendant to an aggregate prison term offive years to be followed by postrelease supervision of three years. Defendant appeals, and wenow affirm.
[*2] Defendant failed to renew his trialmotion to dismiss at the close of all proof and, as such, his challenge to the legal sufficiency ofthe evidence presented is unpreserved (see People v Newell, 148 AD3d 1216, 1220 [2017]; People v Chirse, 146 AD3d 1031,1031-1032 [2017], lv denied 29 NY3d 947 [2017]). Nevertheless, our weight of theevidence review includes an evaluation as to whether the elements of the crimes for which hewas convicted were proved beyond a reasonable doubt (see People v Danielson, 9 NY3d 342, 349 [2007]; People vNewell, 148 AD3d at 1220). Inasmuch as an acquittal would not have been unreasonablehere, we will "weigh conflicting testimony, review any rational inferences that may be drawnfrom the evidence and evaluate the strength of such conclusions" in order to determine whetherthe jury was justified in reaching its verdict (People v Danielson, 9 NY3d at 348).
Defendant's "conviction of second degree burglary under Penal Law § 140.25(2) requires proof that [he] entered or remained unlawfully in a dwelling" (People v Cummings, 16 NY3d784, 785 [2011], cert denied 565 US 862 [2011]; see Penal Law§ 140.00 [3]). A dwelling is a building "usually occupied by a person lodgingtherein at night" (Penal Law § 140.00 [3]) and, if "a building consists of two ormore units separately secured or occupied, each unit shall be deemed both a separate building initself and a part of the main building" (Penal Law § 140.00 [2]). Several individualslived in the house where the incident occurred and, while defendant had been invited into thehouse, the victim and her girlfriend played no role in that invitation and were in bed by the timethe revelers arrived. The bedroom door was closed all night except for the victim's girlfriendemerging at one point to tell the partiers to keep it down. The victim's girlfriend also testified thatshe considered her bedroom to be a private area—a point her roommates agreedupon—and that she had not given defendant permission to enter it. The jury could and didfind from the foregoing that the bedroom was "a separate 'dwelling' within a 'building'," and"[t]he fact that the defendant was properly in the common areas of the house did not give him alicense to enter" it (People v Smith, 144 AD2d 600, 601 [1988]; see People vClarke, 185 AD2d 124, 125 [1992], affd 81 NY2d 777 [1993]).
The jury also credited the testimony of the victim and her girlfriend that it was defendantwho entered the closed bedroom, climbed onto the back of the sleeping victim and made contactwith the victim's vagina.[FN*] Despite defendant's efforts to portray hismotive for entering the room to be innocent, his actions as described by the victim and hergirlfriend readily permitted the inference that he intended to commit a crime upon entering it soas to commit burglary in the second degree (see Penal Law § 140.25 [2]; People v Judware, 75 AD3d 841,844 [2010], lv denied 15 NY3d 853 [2010]; People v Brown, 251 AD2d 694, 696[1998], lv denied 92 NY2d 1029 [1998]). Those actions further permitted the inferencethat defendant subjected an unconscious and physically helpless victim to sexual contact in orderto satisfy his own sexual desire so as to commit sexual abuse in the first degree (see PenalLaw §§ 130.00 [3], [7]; 130.65 [2]; People v Manning, 81 AD3d 1181, 1182 [2011], lv denied18 NY3d 959 [2012]; People v [*3]Judware, 75 AD3d at844). Accordingly, "viewing such evidence in a neutral light and weighing the competinginferences that could be drawn therefrom, we are satisfied that the verdict as rendered issupported by the weight of the evidence" (People v Judware, 75 AD3d at 845; see People v Wicks, 73 AD3d1233, 1234 [2010], lv denied 15 NY3d 857 [2010]).
Defendant next contends that prosecutorial misconduct deprived him of a fair trial. Hiscontentions regarding the People's summation are largely unpreserved (see People v Warrington, 146 AD3d1233, 1239 [2017]) and, in many cases, involve statements that "were fair comment on theevidence, permissible rhetorical comment, or responsive to the defense counsel's summation" (People v Hatcher, 130 AD3d 648,649 [2015], lv denied 26 NY3d 968 [2015]; see People v Shelton, 307 AD2d 370,371-372 [2003], affd 1 NY3d 614 [2004]). Defendant rightly complains that the Peoplesubjected a defense witness who had been at the party to inflammatory cross-examinationregarding whether he believed it was "okay" for a man to enter a bedroom and force himself upona sleeping woman (see e.g. People vHull, 71 AD3d 1336, 1339 [2010]). That being said, a prosecutorial misstep of that sort,even when coupled with other sporadic and arguably improper actions by the prosecutor, is notthe type of pervasive and flagrant misconduct that would warrant a new trial (see People v Green, 141 AD3d1036, 1042 [2016], lv denied 28 NY3d 1072 [2016]; People v Houck, 101 AD3d 1239,1240 [2012]).
Defendant further argues that he was plagued by the ineffective assistance of counsel but,"[t]o prevail on such a claim, defendant must demonstrate [both] that his attorney failed toprovide meaningful representation . . . [and] the absence of strategic or otherlegitimate explanations for counsel's allegedly deficient conduct" (People v Bullock, 145 AD3d 1104,1106 [2016] [internal quotation marks and citations omitted]; see People v Clark, 28 NY3d 556, 562-563 [2016]). Defendantattacks the performance of defense counsel in sundry respects but, far from showing poorrepresentation, the record reflects a coherent and well-executed strategy to cast doubt on a strongcase supported by the testimony of the victim and an eyewitness that was supplemented byphotographic evidence. The strategy did not result in defendant's acquittal, but did succeed to theextent that the jury deadlocked on the top count of the indictment. Perfection from counsel is notdemanded and, "[v]iewing this case in its totality and as of the time of the representation, we aresatisfied that defendant received meaningful representation" (People v Molano, 70 AD3d 1172, 1177 [2010], lv denied15 NY3d 776 [2010]; see People vCarver, 27 NY3d 418, 422 [2016]).
Defendant's remaining arguments are not preserved, not persuasive, or both. The grand juryminutes do not, contrary to defendant's contention, disclose any "prosecutorial wrongdoing,fraudulent conduct or" other error prejudicial enough to potentially influence the grand jury'sultimate decision and warrant dismissal of the indictment (People v Huston, 88 NY2d400, 409 [1996]; see People vBoddie, 126 AD3d 1129, 1130 [2015], lv denied 26 NY3d 1085 [2015]).Defendant's argument that the People obliquely referred to his pretrial silence is unpreserved(see CPL 470.05 [2]; People vAbare, 86 AD3d 803, 805 [2011], lv denied 19 NY3d 861 [2012]) and, in anyevent, unsupported by the record. The People were also free to cross-examine a defense witnessas to why he did not give his account of the party to a police investigator despite being asked todo so and, in particular, whether that failure was connected to directions given by the captain of asporting team counting him and defendant among its members to stay quiet (see People v Garcia, 4 AD3d 374,374 [2004], lv denied 4 NY3d 763 [2005]). Lastly, County Court considered theappropriate factors in imposing sentence, and "we cannot conclude that County Court 'placedundue weight upon defendant's ill-advised decision to reject the very favorable plea bargain andproceed to trial' " (People vOlson, 110 AD3d 1373, 1378 [2013], lv denied 23 NY3d 1023 [2014], quotingPeople v Morton, 288 AD2d 557, 559 [2001], lv denied 97 NY2d 758 [2002],cert denied 537 US 860 [2002]).
[*4] McCarthy, J.P., Egan Jr.,Lynch and Clark, JJ., concur. Ordered that the judgment is affirmed.
Footnote *:The victim testified in nouncertain terms that defendant pressed against her vagina in a sexual manner, but the jury wasapparently unable to credit her assertion that insertion had occurred so as to permit a convictionupon the first-degree rape charge. In that regard, the victim awoke in the middle of the assaultand did not "realize exactly what was happening." The trial evidence also indicated, among otherthings, that defendant was in an awkward position to physically accomplish a rape and that therewas no physical or DNA evidence establishing that a rape had occurred.