| People v Manning |
| 2017 NY Slip Op 05356 [151 AD3d 1936] |
| June 30, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v PaulManning, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Sherry A. Chase of counsel), fordefendant-appellant.
John J. Flynn, District Attorney, Buffalo (Emmanuel O. Ulubiyo of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Kenneth F. Case, J.), rendered July 30,2015. The judgment convicted defendant, upon a jury verdict, of kidnapping in the second degreeand attempted kidnapping in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofkidnapping in the second degree (Penal Law § 135.20) and attempted kidnapping inthe second degree (§§ 110.00, 135.20). Defendant and his codefendant(defendants) were at a costume party, and the codefendant was dressed as an FBI agent.Defendants left together in an SUV and, upon encountering a woman (hereafter, first victim) onthe street, defendants got out of the SUV, announced themselves as FBI agents, and tried to pullthe first victim's arms behind her back. When two men approached to see what was going on,defendants got back into the SUV and drove away, and the first victim flagged down a policevehicle. Defendants then encountered another woman (hereafter, second victim) and again gotout of the SUV and acted as if they were FBI agents. One of them put the second victim inhandcuffs, defendant "hoisted" her into the SUV, and defendants began questioning her about asupposed murder investigation. An officer interviewing the first victim happened to see the SUVdriving a few blocks away, and the police pursued it. The codefendant, who was driving, stoppedthe vehicle and fled, and the officers found defendant and the handcuffed second victim in theback seat. Both victims worked as prostitutes, but each victim testified that she did not approachthe SUV for that purpose, and further testified that it did not seem like defendants werejoking.
We reject defendant's contention that the evidence is legally insufficient to establish anattempted abduction of the first victim and an abduction of the second victim (see PenalLaw §§ 135.00 [2] [a]; 135.20). The evidence, viewed in the light mostfavorable to the People (see People v Contes, 60 NY2d 620, 621 [1983]), supports areasonable inference that defendants intended to move the first victim into the SUV (see generally People v Denson, 26NY3d 179, 189 [2015]; People v Brown, 187 AD2d 664, 665 [1992], lv denied81 NY2d 968 [1993]), and it is legally sufficient to establish that the SUV, once in motion,was "a place where [the victims were] not likely to be found" (§ 135.00 [2] [a]; see People v Grohoske, 148 AD3d97, 103 [2017], lv denied 28 NY3d 1184 [2017]; People v Cole, 140 AD3d 1183, 1183-1184 [2016], lv denied28 NY3d 970 [2016]; People v Carter, 263 AD2d 958, 959 [1999], lv denied94 NY2d 820 [1999]). The evidence is also sufficient to establish that defendants restrainedthe second victim "with intent to prevent [her] liberation" (§ 135.00 [2] [a]; seePeople v Linderberry, 222 AD2d 731, 734 [1995], lv denied 87 NY2d 975 [1996];cf. People v Brinson, 55 AD2d 844, 844-845 [1976]), even though she was restrained inthe SUV for a relatively short time (see People v Hinton, 258 AD2d 874, 874 [1999],lv denied 93 NY2d 1019 [1999]; People v Balcom, 171 AD2d 1028, 1028-1029[1991], lv denied 78 NY2d 920 [1991]; see also People v Burkhardt, 81 AD3d 970, 971 [2011], lvdenied 17 NY3d 793 [2011]). In particular, the second victim testified that she asked to bereleased and was told to shut up, that defendant pulled on her clothing and tried to take picturesof her with his phone, [*2]that defendants gave no indication thatshe would be released, and that the codefendant stopped the SUV only in response to the policepursuit. Defendant's further contention that the evidence is insufficient to establish his accessorialliability for the crimes is unpreserved for our review (see People v Gray, 86 NY2d 10, 19[1995]; People v Hales, 272 AD2d 984, 984 [2000], lv denied 95 NY2d 935[2000]), and it is without merit in any event (see People v Allah, 71 NY2d 830, 832[1988]; People v Chambers, 184 AD2d 568, 569 [1992], lv denied 80 NY2d 928[1992]).
Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d342, 349 [2007]), we reject defendant's contention that the verdict is against the weight ofthe evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). The jury wasentitled to reject the defense theory that defendants intended only to play a joke or prank on thevictims (see People v Hunter, 142AD3d 1381, 1381 [2016]; Matter ofRashaun S., 46 AD3d 412, 412 [2007]), as well as defendant's assertions in a policeinterview that the second victim was "with it" and got into the SUV willingly (see People vValero, 134 AD2d 635, 635-636 [1987], lv denied 70 NY2d 1011 [1988]; see generally People v Frankline, 87AD3d 831, 832 [2011], lv denied 19 NY3d 973 [2012]). The challenges thatdefendant raises on appeal to the credibility of the victims " 'were matters for the jury todetermine, and we see no reason to disturb its verdict' " (People v Thompson, 147 AD3d1298, 1300 [2017]; see generally Bleakley, 69 NY2d at 495).
Defendant further contends that he was denied effective assistance of counsel in connectionwith his decision to reject a pretrial plea offer and proceed to trial (see generally Lafler vCooper, 566 US 156, 162-163 [2012]). That contention involves strategic discussionsbetween defendant and his attorney outside the record on appeal, and it must therefore be raisedby way of a motion pursuant to CPL 440.10 (see People v Mangiarella, 128 AD3d 1418, 1418 [2015]; People v Rosario, 43 AD3d 765,765 [2007], lv denied 9 NY3d 1009 [2007]). On the record before us, defendant has notestablished that his rejection of the plea offer was attributable to ineffective assistance of counsel(see People v Nicelli, 121 AD3d1129, 1130 [2014], lv denied 24 NY3d 1220 [2015]; People v Bennett, 277AD2d 1008, 1008 [2000], lv denied 96 NY2d 780 [2001]; see also People v Rodriguez, 133AD3d 619, 620 [2015], lv denied 27 NY3d 968 [2016]). Finally, we rejectdefendant's contention that his sentence—a determinate term of imprisonment of 10 yearsplus a period of postrelease supervision for the class B violent felony offense of kidnapping inthe second degree, and a lesser concurrent term for the class C violent felony offense ofattempted kidnapping in the second degree (see Penal Law § 70.02 [1] [a],[b])—is unduly harsh and severe (see generally People v Lemery, 107 AD3d 1593, 1595 [2013],lv denied 22 NY3d 956 [2013]). Present—Whalen, P.J., Peradotto, DeJoseph,Curran and Winslow, JJ.