| People v McClenos |
| 2019 NY Slip Op 03849 [172 AD3d 1638] |
| May 16, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Andre McClenos, Appellant. |
Theodore J. Stein, Woodstock, for appellant, and appellant pro se.
Mary Pat Donnelly, District Attorney, Troy (Jacob B. Sher of counsel), for respondent.
Devine, J. Appeal from a judgment of the County Court of Rensselaer County (Ceresia, J.),rendered September 29, 2016, upon a verdict convicting defendant of the crime of sexual abusein the first degree.
Defendant was charged in an indictment with various offenses after evidence emerged that hehad sexually assaulted an intellectually disabled woman in the City of Troy, Rensselaer County.Following a jury trial, he was convicted of sexual abuse in the first degree. County Courtsentenced defendant to seven years in prison, to be followed by 10 years of postreleasesupervision, and he now appeals.
We affirm. In order to establish the crime of sexual abuse in the first degree, the People wererequired to demonstrate that defendant subjected another person to sexual contact "[b]y forciblecompulsion" (Penal Law § 130.65 [1]; see Penal Law § 130.00[8]; People v Hartle, 159 AD3d1149, 1151 [2018], lv denied 31 NY3d 1082 [2018]). The trial testimony of bothdefendant and the victim, the findings from a sexual assault examination of the victim and DNAevidence recovered from her body left no doubt that defendant had sexual contact with the victim(see Penal Law § 130.00 [3]). Defendant asserts that the sexual contact didnot result from forcible compulsion, however, and that the jury's finding to the contrary was notsupported by legally sufficient proof and was against the weight of the evidence. The legalsufficiency argument is unpreserved due to defendant's failure to specifically attack the proof offorcible compulsion in his trial motion to dismiss but, "in conducting our weight of the evidencereview, we must determine whether each element of the crime[ ] for which defendant wasconvicted was proven beyond a reasonable doubt" (People v Vega, 170 AD3d 1266, 1267 [2019]; see People v Taylor, 163 AD3d1275, 1276 [2018], lv denied 32 NY3d 1068 [2018]).
The victim here cannot live independently due to an intellectual disability, but works andvolunteers in the community and is capable of using public transportation by herself. Shetestified that she was waiting for a bus to return home from volunteer work when she wasapproached by a man that she did not know. Defendant disputed how this interaction unfolded,but acknowledged that he was the man in question. According to the victim, defendant offeredher money and gave her his phone number, conduct that made her uncomfortable and afraid.Defendant then grabbed her hand and led her, over her protestations, to a wooded area. There, heforced her onto the ground, removed her clothing and subjected her to sexual contact thatincluded rape. She remained frightened and told him to stop, but he did not do so and pinned herdown until he was finished. He then left, after which the victim caught a bus home. The victim'ssister confirmed in her testimony that the victim was late in coming home and that, when she didarrive, she appeared frightened, had vegetation in her hair and on her clothing, and was notwearing her underwear. The victim's sister called the police and, after brief questioning, thevictim stated that she had been raped. The victim also complained of pain when she underwent asubsequent sexual assault examination, and the examination itself revealed injuries to hergenitalia and bleeding that were consistent with penetration of some sort.
The foregoing shows aggressive, intimidating behavior by defendant toward an intellectuallyimpaired, fearful and objecting stranger that easily constitutes forcible compulsion,notwithstanding the absence of more extreme violence and the victim's failure to cry out tobystanders for help (see People v Hartle, 159 AD3d at 1152; People v Melendez, 138 AD3d1159, 1160 [2016], lv denied 27 NY3d 1136 [2016]; People v Luckette, 126 AD3d1044, 1045-1046 [2015], lv denied 26 NY3d 1110 [2016]; People v Scanlon, 52 AD3d 1035,1038 [2008], lv denied 11 NY3d 741 [2008]). Defendant responded with his own accountof a consensual encounter with the victim, and he assailed the victim's credibility with, amongother things, the inconsistencies in her account over time, her psychiatric issues and her historyof being an unreliable narrator. The jury presumably took those issues into consideration when itacquitted defendant on rape charges related to the incident, but also credited the victim's coreclaim that defendant had subjected her to some sexual contact by forcible compulsion. We accorddeference to that credibility assessment and, after independently weighing the conflicting proof ina neutral light, cannot say that the jury's verdict was against the weight of the evidence (seePeople v Melendez, 138 AD3d at 1161; People v Luckette, 126 AD3d at 1046).
Defendant's remaining challenges are unavailing. His attack upon the jury instruction on theelements of sexual abuse in the first degree is unpreserved for our review, as he failed to raiseany objection to the instruction at trial (see CPL 470.05 [2]; People v Van Alphen, 167 AD3d1076, 1079 [2018], lv denied 32 NY3d 1210 [2019]; People v Gray, 151 AD3d 1470,1475 [2017], lv denied 30 NY3d 949 [2017], cert denied 583 US &mdash, 138 SCt 1295 [2018]). In any event, we perceive no deficiency in an instruction that "closely paralleledthe pattern jury charge" (People vKuykendall, 43 AD3d 493, 495 [2007], lv denied 9 NY3d 1007 [2007];see CJI2d[NY] Penal Law § 130.65 [1]). Defendant lastly raises contentionsin his pro se supplemental brief of purported prosecutorial misconduct that are either unpreservedor precluded and, regardless, did not "deprive defendant of due process or a fair trial" so as towarrant "corrective action in the interest of justice" (People v Cortese, 79 AD3d 1281, 1283 [2010], lv denied 16NY3d 857 [2011]; see CPL 470.15 [3] [c]; People v Morin, 192 AD2d 791,791-792 [1993], lv denied 81 NY2d 1077 [1993]).
Garry, P.J., Mulvey, and Rumsey, JJ., concur. Ordered that the judgment is affirmed.