| People v Perry |
| 2017 NY Slip Op 07484 [154 AD3d 1168] |
| October 26, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v William R. Perry, Appellant. |
Edward W. Goehler, Cortland, for appellant.
Weeden A. Wetmore, District Attorney, Elmira (Susan Rider-Ulacco of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the County Court of Chemung County (Keene, J.),rendered October 28, 2013, upon a verdict convicting defendant of the crime of rape in the thirddegree.
In January 2013, when defendant was 18 years old, his ex-girlfriend (hereinafter the victim)went with him to his house and up to his bedroom, where, according to the victim, he engaged insexual intercourse with her in spite of her protests. At the end of a jury trial, defendant wasacquitted of rape in the first degree but convicted of rape in the third degree. County Courtdenied defendant's request for youthful offender treatment and sentenced him to three years inprison followed by five years of postrelease supervision. Defendant appeals.
The verdict is not against the weight of the evidence. "A weight of the evidence reviewrequires this Court to first determine whether, based on all the credible evidence, a differentfinding would not have been unreasonable . . . [and then] weigh the relativeprobative force of conflicting testimony and the relative strength of conflicting inferences thatmay be drawn from the testimony to determine if the verdict is supported by the weight of theevidence" (People v Taft, 145 AD3d1090, 1091-1092 [2016] [internal quotation marks, brackets and citations omitted], lvdenied 29 NY3d 953 [2017]; see People v Bleakley, 69 NY2d 490, 495 [1987]). Ascharged here, a defendant is guilty of rape in the third degree when he or she "engages in sexualintercourse with another person without such person's consent where such lack of consent is byreason of some factor other than incapacity to consent" (Penal Law § 130.25 [3]).To evaluate lack of consent in this context, the jury must determine " 'whether the victim,by words or actions, clearly expresse[d] an unwillingness to engage in the sexual act in such away that a neutral [*2]observer would have understood that thevictim was not consenting' " (People v Manigault, 150 AD3d 1331, 1333 [2017], lvdenied 29 NY3d 1130 [2017], quoting People v Newton, 8 NY3d 460, 464 [2007]; see Penal Law§ 130.05 [2] [d]).
Defendant testified that he engaged in sexual intercourse with the victim, leaving consent asthe only contested element. The victim testified that she attempted to push defendant away, triedto keep her pants pulled up, and told defendant "no" and to stop more than 10 times. She testifiedthat, despite these efforts, defendant pushed her down when she tried to get up, pinned her on hisbed, pulled down her pants and engaged in intercourse for more than five minutes. Immediatelyafter she left the house, the victim called her mother and reported the incident. Multiple familymembers who interacted with the victim soon after the incident testified that she was upset andcrying hysterically. She was taken to the hospital, where a sexual assault examination wasperformed. Swabs of sperm retrieved from the victim's body were tested and found to matchdefendant's DNA profile.
A police investigator testified regarding defendant's two statements, which were admittedinto evidence. In his first statement, defendant said he did not see the victim on the relevant dateand had not seen her for months. In his second statement, defendant admitted that he saw thevictim that day but said they did not have sex. At trial, defendant conceded that he lied in bothstatements, and admitted engaging in intercourse with the victim but claimed it was consensual.He testified that the victim encouraged physical contact by sitting on his lap and that sheremoved her own pants. According to defendant, the victim told him to stop after 10 to 15minutes of intercourse and he did so immediately; she had not told him to stop earlier and neverindicated "she was not a willing participant."
The verdict ultimately depended on whether the jury believed the victim's or defendant'stestimony. Deferring to the jury's credibility determinations and viewing the evidence in a neutrallight, the verdict is not against the weight of the evidence as the proof supports a finding that thevictim did not consent to sexual intercourse with defendant (see People v Stocum, 143 AD3d 1160, 1163 [2016]; People v Tubbs, 115 AD3d 1009,1010 [2014]). Accepting the victim's version of events, as it appears the jury primarily did, aneutral observer in defendant's position would have understood the victim's words and actions toconvey a lack of consent, and the victim's behavior after the incident further supports theconclusion that defendant engaged in sexual intercourse with her against her will (see Peoplev Manigault, 150 AD3d at 1333; People v Simonetta, 94 AD3d 1242, 1244 [2012], lv denied19 NY3d 1029 [2012]).
Defendant argues that the verdict is repugnant because the jury acquitted him of rape in thefirst degree, apparently reflecting disbelief of the victim's testimony regarding forciblecompulsion, but convicted him of rape in the third degree. We will not address this argumentbecause defendant did not preserve it for review by raising it before the jury was discharged, at atime when County Court could have resubmitted the matter to the jury to obtain a consistentverdict (see People v Alfaro, 66 NY2d 985, 987 [1985]; People v Perry, 27 AD3d 952, 953[2006], lv denied 8 NY3d 883 [2007]).
Defendant further argues that he was denied the effective assistance of counsel. Specifically,he contends that counsel was ineffective by failing to exercise a peremptory challenge on aparticular juror, to retain an expert witness and to raise the repugnancy argument. To prevail onan ineffective assistance claim, a defendant bears the burden of "demonstrating that defensecounsel deprived him or her of a fair trial by providing less than meaningful representation" (People v Smith, 140 AD3d 1403,1404 [2016]; see People v Sanchez,21 NY3d 216, 222-223 [2013]). A defendant cannot meet this burden unless he or sheproves that no[*3]"strategic or other legitimate explanations"existed to justify counsel's perceived inadequacies (People v Duffy, 119 AD3d 1231, 1234 [2014], lv denied 24NY3d 1043 [2014]; see People v Rivera, 71 NY2d 705, 709 [1988]), and any criticismsof counsel's performance must amount to more than "a simple disagreement with [counsel's]strategies" (People v Flores, 84 NY2d 184, 187 [1994]; see People v McRobbie, 97 AD3d970, 972 [2012], lv denied 20 NY3d 934 [2012]).
First, addressing voir dire, "[a] counsel's decision to challenge a potential juror is a tacticalone that this Court will not typically second-guess" (People v Pinkney, 90 AD3d 1313, 1316-1317 [2011]). The juror atissue stated during voir dire that he knew multiple police officers and was a retired correctionofficer, but he assured County Court that he would decide the case based on the evidence and didnot believe his background would place defendant at a disadvantage. Counsel exercisedperemptory challenges on several other potential jurors who had connections to police officers.Defendant failed to establish that counsel lacked a legitimate strategy in choosing not to removethis particular juror (see People vSlack, 137 AD3d 1568, 1570 [2016], lv denied 27 NY3d 1139 [2016]). Second,because the record does not disclose counsel's decision-making process regarding whether to hirean expert, that complaint is not properly raised on direct appeal and would more appropriately bethe subject of a CPL article 440 motion (see People v Scaringe, 137 AD3d 1409, 1418 [2016], lvdenied 28 NY3d 936 [2016]).
Third, regardless of whether the verdict was repugnant, counsel could have made a tacticalchoice not to object. An objection would have permitted County Court to resubmit the entirematter to the jury to obtain a verdict that was consistent, which would have exposed defendant tothe possibility that the jury would change its vote on the count of rape in the first degree fromacquittal to conviction (see People v Alfaro, 66 NY2d at 987; People v Perry, 27AD3d at 953). We cannot say that it would be an unreasonable strategy for an attorney to avoideven the possibility of such an occurrence. Considering counsel's representation as a whole,which included pursing a reasonable defense strategy, making persuasive opening and closingstatements and obtaining an acquittal on the highest count, defendant received meaningfulrepresentation (see People vWiltshire, 96 AD3d 1227, 1230 [2012], lv denied 22 NY3d 1204 [2014]).
Furthermore, County Court did not abuse its discretion in denying defendant's request foryouthful offender status, considering the nature of the crime, the Probation Department'srecommendation and that defendant lied to the police more than once, showed no remorse andcontinued to blame the victim (seePeople v Green, 128 AD3d 1282, 1283 [2015]; People v Fernandez, 106 AD3d 1281, 1286 [2013]). Finally, thesentence was not harsh or excessive.
Peters, P.J., Rose, Mulvey and Rumsey, JJ., concur. Ordered that the judgment isaffirmed.