| People v Troche |
| 2018 NY Slip Op 01490 [159 AD3d 735] |
| March 7, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Felix Troche, Appellant. |
Laurette D. Mulry, Riverhead, NY (Felice B. Milani of counsel), for appellant.
Timothy Sini, District Attorney, Riverhead, NY (Thomas C. Costello of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County (BarbaraKahn, J.), rendered March 10, 2015, convicting him of rape in the first degree, criminal sexualact in the first degree (three counts), sexual abuse in the first degree (two counts), assault in thesecond degree (two counts), unlawful imprisonment in the first degree, forcible touching (twocounts), and assault in the third degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant was tried for rape in the first degree and various related offenses committedagainst the pregnant complainant at a house frequented by drug abusers. The complainanttestified at length and in detail regarding the crimes, and numerous witnesses confirmed thedefendant's violent and assaultive behavior toward the complainant on the night of the offensesand described the complainant as distraught, bloodied, and disheveled immediately following herencounter with him. Moreover, the prosecution presented forensic and medical evidenceestablishing that, despite the defendant's denials to the police that he had sex with thecomplainant, his semen was found on the complainant's underwear, and the physical injuries thecomplainant suffered were consistent with her account of the incident. In marked contrast, thedefendant's counsel argued at trial that the defendant and the complainant had consensual sex. Hesupported this defense with the testimony of a friend of the defendant who stated that he hadheard from someone that the complainant "was offering herself to other men that night," a secondwitness who asserted that after the defendant left the scene, she saw a woman outside the house"asking people for, you know, to give blow jobs for a ride," and the defendant's fiancée,who claimed that on the night of the incident, she observed the complainant offering "sexualfavors for crack," but that the defendant had no contact with the complainant that night. Thefiancée further testified that after his arrest, the defendant repeatedly assured her over aperiod of several months that he did not have sex with the complainant and that the police did nothave his DNA. Nevertheless, the fiancée testified that "[in] the back of my mind I thoughtdifferent." She additionally testified that the defendant had been out with a friend earlier on thedate of the incident, but she did not know and "[was] not exactly sure" where he had been. Noneof the defense witnesses provided any evidence or explanation regarding how the defendant'ssemen came to be on the complainant's underwear. The jury returned a verdict [*2]convicting the defendant of all of the charged offenses.
Contrary to the defendant's contention, the County Court did not err in discharging a seatedjuror upon its finding, after a reasonable inquiry, that the juror would be unable to appear withintwo hours of the time set for trial to continue (see CPL 270.35 [2] [a]; People vJeanty, 94 NY2d 507 [2000]; Peoplev Browne, 144 AD3d 834, 835 [2016]; People v Walker, 141 AD3d 678, 678-679 [2016]; People v Barksdale, 130 AD3d746 [2015]).
Similarly unavailing is the defendant's contention that the admission of evidence regardinghis gang affiliation constituted reversible error. The defendant has failed to preserve for appellatereview this challenge to the extent that he currently argues that the trial testimony on that matterexceeded the scope of the County Court's pretrial ruling (see CPL 470.05 [2]; People v Brown, 139 AD3d 964,965 [2016]). In any event, while the admission of some of the evidence may have been improper,any such error was harmless, as there was overwhelming evidence of the defendant's guilt, andthere was no significant probability that the jury would have acquitted the defendant had it notbeen for the error (see People v Crimmins, 36 NY2d 230, 242 [1975]; People v Borgella, 144 AD3d 1048[2016]; People v Hollman, 98 AD3d584 [2012]).
Moreover, the County Court did not err in permitting the complainant's mother to testify withrespect to the complainant's physical appearance immediately after the incident (see People v Shepherd, 83 AD3d1298, 1300 [2011]; People v Terrence, 205 AD2d 301, 302 [1994]). In addition, themother properly testified as to the prompt outcry made by the complainant at that time, and hertestimony on that point did not exceed the level of detail permissible under the prompt outcryhearsay exception (see People vTucker, 117 AD3d 1090 [2014]; People v Bernardez, 63 AD3d 1174, 1175 [2009]; People vSalazar, 234 AD2d 322 [1996]). Furthermore, while the testimony of the mother as to thecomplainant's conversation with certain police officers was improper (see generally People vMcDaniel, 81 NY2d 10, 17 [1993]), as was the testimony of another witness regarding hisconversation with the complainant in the days following the incident (see People v Barnes, 140 AD3d443, 444 [2016]), these errors were harmless, as there was overwhelming evidence of thedefendant's guilt, and there was no significant probability that, absent the errors, the defendantwould have been acquitted (see People vCaban, 126 AD3d 808, 809 [2015]; People v Tucker, 117 AD3d at 1091).Additionally, the combined effect of all of the foregoing errors did not deprive the defendant of afair trial. We note that the defendant waived any objection to the testimony of the motherregarding the complainant's statement to the effect that she was sexually assaulted by gangmembers, since it was the defense that elicited such testimony (see People v Honghirun, 133 AD3d882, 883 [2015], affd 29 NY3d 284 [2017]).
The defendant's claim that he was denied the effective assistance of trial counsel is withoutmerit. The defendant failed to demonstrate that his trial counsel's decision not to call a certainwitness who had already testified for the prosecution lacked a "legitimate," "strategic" basis(People v Rivera, 71 NY2d 705, 709 [1988]; see People v King, 27 NY3d 147, 159 [2016]). A review of therecord as a whole establishes that the defendant was afforded meaningful representation (seePeople v Benevento, 91 NY2d 708, 712 [1998]; People v Baldi, 54 NY2d 137, 147[1981]). Furthermore, trial counsel's strategic decision in this regard did not deny the defendanthis right to confront an adverse witness (see generally People v Gibson, 106 AD3d 834 [2013]; People v Rivera, 98 AD3d 529,529 [2012]).
The defendant has failed to preserve for appellate review his challenge to the legalsufficiency of the evidence (see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484 [2008]). In any event, contrary tohis contention, there was ample evidence corroborating the accomplice testimony here (seeCPL 60.22 [1]; People vReome, 15 NY3d 188, 195 [2010]) and, viewing the evidence in the light most favorableto the prosecution (see People v Contes, 60 NY2d 620 [1983]), we find that it was legallysufficient to establish the defendant's guilt beyond a reasonable doubt (see People v West, 105 AD3d 781[2013]). Moreover, in fulfilling our responsibility to conduct an independent review of the weightof the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342, 348 [2007]), we neverthelessaccord great deference to the jury's opportunity to view the witnesses, hear the testimony, andobserve demeanor (see People v Mateo, 2 NY3d 383 [2004]; People v Bleakley,69 NY2d 490, 495 [1987]). Upon reviewing the record here, we are satisfied that the verdict ofguilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).
[*3] The sentence imposed was not excessive (see People vSuitte, 90 AD2d 80 [1982]). Mastro, J.P., Miller and Brathwaite Nelson, JJ., concur.
Hall, J., dissents, and votes to reverse the judgment, on the law, and order a new trial, withthe following memorandum: On June 1, 2012, the complainant visited a house in which KennethNeu rented a room in order to smoke crack cocaine with Neu. There were many other people inthe house that day. According to the complainant, while she was at the house, the defendantengaged in several sex acts with her by forcible compulsion. After a jury trial, the defendant wasconvicted of one count of rape in the first degree, three counts of criminal sexual act in the firstdegree, and lesser charges.
I agree with my colleagues in the majority that the evidence was legally sufficient to establishthe defendant's guilt, and that the verdict was not against the weight of the evidence. However, Ibelieve that a new trial is required based on certain evidentiary errors.
At the outset of the trial, the People sought to introduce evidence of the defendant's allegedgang affiliation, in order to explain: (1) the close relationship between the defendant and some ofthe People's cooperating witnesses and why those witnesses might have been reluctant to testifyagainst him; (2) why people present in the house would allow the alleged crimes to take placeand fail to report them to the police; and (3) why the complainant delayed reporting the allegedcrimes to the police for approximately 36 hours. Over defense counsel's objection, the CountyCourt granted the People's application, except that it stated that it would not permit evidenceconcerning "historical gang issues, hierarchy, etc., [but] merely [would permit evidence] thataccording to these cooperating witnesses [the defendant] was in . . . a superiorposition" in the gang. The People then proceeded to present extensive testimony from eightwitnesses regarding the defendant's alleged gang affiliation, eliciting, among other things, thatone of the witnesses became a member of the gang by performing a drive-by shooting. Only oneof the eight witnesses testified that the defendant was in a superior position in the gang; thatwitness testified that the defendant had referred to himself as "third crown."
While the defendant did not preserve for appellate review his contention that the evidencepresented exceeded the scope of the County Court's ruling, by opposing the application made bythe People, he preserved his contention that the gang evidence should not have been admitted atall (see CPL 470.05 [2]). I submit that under the circumstances of this case, the courterred in granting the People's application. The alleged crimes were not gang-motivated, and thelimited probative value of the evidence was outweighed by the possible prejudice to thedefendant (see People v Hollman,98 AD3d 584, 585 [2012]; People v Sellan, 143 AD2d 690, 691 [1988]).
In addition, the County Court erroneously allowed testimony by Neu regarding a statementmade to him by the complainant approximately a week after the incident, as the statement wasinsufficiently prompt to qualify under the prompt outcry exception to the hearsay rule and,moreover, the testimony went beyond the mere fact of the outcry (see People v McDaniel,81 NY2d 10, 17 [1993]; People v Rice, 75 NY2d 929, 932 [1990]; People v Barnes, 140 AD3d 443,444 [2016]).
Unlike my colleagues in the majority, I cannot conclude that these errors were harmless. Theprejudice resulting from the County Court's ruling on the admissibility of the gang evidence wassubstantial, as the People proceeded to present testimony from eight different witnesses regardingthe defendant's alleged gang affiliation, including one witness who testified that he became amember of the gang by performing a drive-by shooting. Further, while semen found on thecomplainant's underclothing matched the defendant's DNA profile, the defendant asserted adefense of consent. This defense was based on the testimony of three witnesses who stated that,on the day of the alleged crimes, the complainant went around the house offering to performsexual favors in exchange for crack cocaine or in exchange for a ride home. Although one ofthese [*4]witnesses, the defendant's fiancée, testified thatshe did not see the defendant have any contact with the complainant on the night of the allegedcrimes, she further testified that she suspected that the defendant had had sex with thecomplainant earlier in the day, when she was not with the defendant. Moreover, the complainantadmitted that she was high on crack cocaine on the date of the alleged crimes. Under these andall of the other circumstances of the case, I submit that the proof of the defendant's guilt was notoverwhelming, and even if it were, there is a significant probability that the verdict would havebeen different if it had not been for the errors (see People v McDaniel, 81 NY2d at 20;People v Crimmins, 36 NY2d 230, 241-242 [1975]).
Accordingly, I vote to reverse and order a new trial.