| People v Horton |
| 2018 NY Slip Op 04040 [162 AD3d 1118] |
| June 7, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Jeffrey L. Horton, Appellant. |
Danielle Neroni Reilly, Albany, for appellant.
Matthew VanHouten, District Attorney, Ithaca (Andrew J. Bonavia of counsel), forrespondent.
Pritzker, J. Appeal from a judgment of the Supreme Court (Cassidy, J.), rendered July 22,2016 in Tompkins County, upon a verdict convicting defendant of the crimes of burglary in thefirst degree, burglary in the second degree, rape in the first degree, criminal sexual act in the firstdegree, aggravated sexual abuse in the third degree, sexual abuse in the first degree, assault in thethird degree, unlawful imprisonment in the second degree, stalking in the third degree, stalking inthe fourth degree and menacing in the third degree.
Defendant was charged in a 15-count indictment with various crimes allegedly committedagainst his ex-girlfriend. Following a jury trial, he was found guilty of 11 counts: burglary in thefirst degree, burglary in the second degree, rape in the first degree, criminal sexual act in the firstdegree, aggravated sexual abuse in the third degree, sexual abuse in the first degree, assault in thethird degree, unlawful imprisonment in the second degree, stalking in the third degree, stalking inthe fourth degree and menacing in the third degree. County Court sentenced him to an aggregateprison term of 12 years, followed by five years of postrelease supervision. Defendantappeals.
Defendant contends that his convictions are against the weight of the evidence. Here, thevictim, defendant and another witness all testified regarding the days leading up to the attackwhen defendant repeatedly and incessantly contacted the victim, after he ended their relationship,by way of phone calls, text messages and appearing at the victim's house and her place of workeither unannounced or expressly uninvited. The victim testified regarding the night of the attack[*2]when she woke up to defendant standing in her bedroom,frustrated that she was ignoring his calls, and threatening to kill her if she tried to leave. Thevictim testified that, although defendant had a key to her house, he relinquished that key bythrowing it at her and, after defendant ended their relationship, she repeatedly instructed him toleave her alone and not come to her home. Notably, defendant conceded at trial that he was notgiven any express permission to enter the victim's home on the night in question. The victim thentestified regarding vaginal and anal sexual intercourse, that defendant penetrated her vaginallywith a vibrator and that defendant performed oral sex on her, all acts to which defendantadmitted. However, the victim testified explicitly that there was nothing consensual about any ofthis sexual contact; her testimony that she was forcibly bound, beaten and actively resisted wascorroborated by photographs and testimony by law enforcement, as well as medicalprofessionals. The victim also testified to being pinned down and informed at least once not totry and escape. The victim also testified regarding physical injuries inflicted on her by defendant,and which defendant readily admitted to having inflicted, including bruises, swelling and whatwas ultimately diagnosed as postconcussion syndrome that kept the victim out of work for over amonth.
While there were certainly differences between the victim's and defendant's versions ofevents, their conflicting testimony "presented a classic he-said she-said credibility determinationfor the jury to resolve" (People vKiah, 156 AD3d 1054, 1056 [2017] [internal quotation marks and citation omitted],lv denied 31 NY3d 984 [2018]; see People v Brabham, 126 AD3d 1040, 1043 [2015], lvdenied 25 NY3d 1160 [2015]). "Viewing the evidence in a neutral light and accordingdeference to the jury's credibility assessments, the verdict is supported by the weight of theevidence as to all of the charged crimes" (People v Brabham, 126 AD3d at 1043[citations omitted]; see People vMcCann, 126 AD3d 1031, 1033 [2015], lv denied 25 NY3d 1167 [2015]).
Defendant also contends that he was deprived of a fair trial due to the denial of four of hischallenges for cause based on preexisting relationships between the prospective jurors andwitnesses (see CPL 270.20 [1] [b], [c]). Turning first to defendant's contention regardingprospective juror No. 4 from round three, she indicated that she knew Ruth Crepet, a physicianthat the People intended to call as a witness, as Crepet was her primary care physician of 15years. Although the juror stated that she had a preconceived notion that Crepet would be truthful,she indicated that she could be impartial and fair at trial in that regard. This juror also stated thather husband was the victim of a robbery and, because the person "got off," she was "a littlecynical" about the criminal justice system, but "would try" to be impartial and thought "that [she]could be." When asked if she could find defendant guilty, this juror stated "yes, you bet."Defendant challenged this juror for cause on the foregoing grounds, but Supreme Courtdetermined that she had sufficiently rehabilitated herself, and defendant utilized a peremptorychallenge to exclude her.
While it is not necessarily an issue that Crepet was the prospective juror's doctor (see People v Stanford, 130 AD3d1306, 1309 [2015], lv denied 26 NY3d 1043 [2015]), her general equivocality isproblematic. "Equivocal, uncertain responses, including statements that a prospective juror will'try' or 'hope' to be impartial, are insufficient in the absence of [other] 'express and unequivocal'declarations that the juror will put any preconceptions aside and render an impartial verdict basedsolely on the evidence" (People v Burdo, 256 AD2d 737, 740 [1998]; see People v Garcia, 125 AD3d882, 883-884 [2015]). Here, while some of the prospective juror's responses wereunequivocal, many were not, and, as such, her responses as a whole do not demonstrate that heropinion would not influence her verdict (see People v Hutthinson, 150 AD3d 887, 887-889 [2017]).Therefore, further inquiry was needed and, in the absence of said [*3]inquiry, it was error for Supreme Court to deny defendant'schallenge for cause (see People vAlvarez, 130 AD3d 1054, 1055 [2015]; People v Burdo, 256 AD2d at 740; compare People v Vargas, 155 AD3d1530, 1531 [2017], lv denied 30 NY3d 1121 [2018]). Because the defense exhaustedits allotment of peremptory challenges prior to the completion of jury selection, the judgment ofconviction must be reversed (see People v Alvarez, 130 AD3d at 1055).
While this determination renders defendant's remaining arguments academic, as the matter isreturning to Supreme Court for a new trial, we briefly address two arguments. First, we agreewith defendant that the People's use of defendant's pretrial selective silence was improper (see People v Williams, 25 NY3d185, 188 [2015]; compare People v Savage, 50 NY2d 673, 677-678 [1980], certdenied 449 US 1016 [1980]; People v Rothschild, 35 NY2d 355, 360-361 [1974]).We also agree with defendant that portions of testimony by Crepet and Jeremiah Allen were toodetailed to fall within the prompt outcry hearsay exception and, as such, constitutedimpermissible bolstering (see People vGreen, 108 AD3d 782, 784 [2013], lv denied 21 NY3d 1074 [2013]; compare People v Gross, 26 NY3d689, 694-695 [2016]; People vManning, 81 AD3d 1181, 1184 [2011], lv denied 18 NY3d 959 [2012]).
Garry, P.J., McCarthy, Devine and Aarons, JJ., concur. Ordered that the judgment isreversed, on the law, and matter remitted to the Supreme Court for a new trial.