| People v Ackerman |
| 2019 NY Slip Op 04785 [173 AD3d 1346] |
| June 13, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Craig Ackerman, Appellant. |
Craig Meyerson, Peru, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), forrespondent.
Aarons, J. Appeal from a judgment of the County Court of Schenectady County (Sypniewski,J.), rendered February 7, 2017, upon a verdict convicting defendant of the crimes of attemptedmurder in the second degree, burglary in the first degree (two counts), rape in the first degree(two counts), strangulation in the first degree, attempted robbery in the first degree, assault in thesecond degree (two counts) and endangering the welfare of a child.
In September 2015, defendant entered the apartment of victim A in the middle of the nightand strangled, raped and hit her. Victim A's son (hereinafter victim B) woke up and sawdefendant punching victim A. Defendant grabbed victim B, threw him back in his room andkicked him. In connection with this incident, defendant was arrested and charged by indictmentwith attempted murder in the second degree (count 1), two counts of burglary in the first degree(count 2 pertaining to victim A; count 3 pertaining to victim B), two counts of rape in the firstdegree (counts 4 and 5), strangulation in the first degree (count 6), attempted robbery in the firstdegree (count 7), two counts of assault in the second degree (count 8 pertaining to victim A;count 9 pertaining to victim B) and endangering the welfare of a child (count 10). Prior to trial, aWade hearing was held before a Judicial Hearing Officer, who ultimately recommendeddenying defendant's suppression motion. County Court adopted the Judicial Hearing Officer'srecommendation. Following a jury trial in December 2016, defendant was convicted as charged.County Court sentenced defendant, as a violent felony offender, to an aggregate prison term of 75years, followed by 20 years of postrelease supervision. Defendant appeals. We affirm.
The trial evidence reveals that in September 2015, after victim A went to sleep, she wasawakened by a loud noise in the middle of the night. Victim A testified that she then felt handsaround her throat and that defendant whispered to her that he was her neighbor. According tovictim A, defendant tightened his grip "very hard, so that [she] couldn't even get a whisper out"and pushed her onto her bed. Defendant demanded money, but victim A could not respond andinstead hit him in his back to indicate that she could not breathe. Defendant asked victim A "if[she] wanted to die," and she shook her head so as to respond in the negative. Victim A testifiedthat defendant then "barely opened his hands" so that she could whisper. Victim A encourageddefendant to take her car keys and get money that she had in there. Defendant, however, did notleave and positioned himself on top of victim A with his hands still around her neck. Defendanttold her to move her leg over. Victim A stated that she started to fight, but defendant tightenedhis grip on her neck and she blacked out.
Victim B, who was eight years old at the time of trial, testified that he woke up in the middleof the night due to victim A's screaming. When the screaming stopped, victim B went to victimA's bedroom and saw defendant wearing an orange shirt. Defendant told victim B to stay outsideand closed the bedroom door. Victim B, however, opened the door and saw defendant punchingvictim A in the stomach and victim A vomiting. Victim B testified that defendant saw him,grabbed him by the neck, threw him in his bedroom and kicked his face. Victim B thenfainted.
Victim A testified that when she regained consciousness, she was vomiting, and she heardvictim B screaming. Victim A did not have control of her motor skills and tried to walk to victimB's bedroom. Victim A saw defendant in the hall between the two bedrooms and then defendantran into victim B's bedroom. Victim A heard victim B "scream again as if he had been hurtagain." Victim A stated that defendant then came out of the bedroom, hit her one more time and"staggered out, trying to keep his pants from falling down." Law enforcement officials wereeventually called, and victim A and victim B were treated at a hospital.
Defendant argues that the verdict with respect to both counts charging him with rape in thefirst degree was not supported by legally sufficient proof because the People did not establish theelement of sexual intercourse. Defendant, however, did not raise this specific ground in his trialmotion to dismiss. Rather, defendant moved to dismiss on the basis that the evidence did notestablish that he was the perpetrator of the alleged crimes. Accordingly, defendant's legalsufficiency claim regarding these counts is unpreserved (see People v Taylor, 163 AD3d 1275, 1275-1276 [2018], lvdenied 32 NY3d 1068 [2018]; People v Novak, 148 AD3d 1352, 1353 [2017], lv denied29 NY3d 1084 [2017]). To the extent that defendant makes a weight of the evidence argument asto this element, it is not properly before us given that it was raised for the first time in the replybrief (see People v Blume, 92 AD3d1025, 1027-1028 [2012], lv denied 19 NY3d 957 [2012]).
Defendant's argument that the proof was not legally sufficient to establish the element ofintent for the attempted murder in the second degree charge is unavailing. The record disclosesthat defendant asked victim A whether she wanted to die and subjected her to prolongedstrangulation to the point that she became unconscious. As such, the People's proof was legallysufficient to show that defendant possessed the requisite intent to kill (see People v Ryder, 146 AD3d1022, 1024 [2017], lv denied 29 NY3d 1086 [2017]). To the extent that defendantraises a weight of the evidence claim as to this element, we find that it is without merit.
Regarding the conviction for strangulation in the first degree and attempted robbery in thefirst degree, defendant argues that the proof was not legally sufficient to establish that victim Asustained a serious physical injury. Victim A testified that, at the time of trial, she still had blurryvision and that she experienced "a snapping . . . in [her] chest," which she describedas "very painful." An emergency room physician who examined victim A at the hospital testifiedthat it was highly likely that victim A lost consciousness due to being strangled and that, basedupon her neurological symptoms, including the rupture of her blood vessels, enough force wasplaced around her neck for both the arteries and veins to be blocked, thereby causing cerebralhypoxia. According to the physician, cerebral hypoxia could lead to death if the pressure aroundthe neck was not relieved. The physician stated that, although a person with an abrupt loss ofblood flow to the brain could remain conscious for "maybe [30] seconds," permanent braindamage from blood loss usually occurred within three minutes. The physician could not providea specific time, but opined that victim A was strangled for longer than 30 seconds and that hersymptoms were a typical result of a prolonged period of cerebral hypoxia. Meanwhile, victim Atestified that approximately "[t]wo and a half minutes" passed from the moment that sheencountered defendant to when she passed out and, during that entire time, defendant kept hishands around her throat. In our view, this evidence was legally sufficient to prove the element ofserious physical injury (see People v Ryder, 146 AD3d at 1025; People v Miller,290 AD2d 814, 815 [2002], lv denied 98 NY2d 678 [2002]). Defendant's weight of theevidence claim regarding the element of serious physical injury was improperly raised for thefirst time in his reply brief (see People v Blume, 92 AD3d at 1027-1028).
Defendant contends that the verdict with respect to all charges was against the weight of theevidence because the proof did not demonstrate that he was the perpetrator. We disagree.Although victim A did not identify defendant as the assailant, she knew of him because he hadpreviously introduced himself as a cleaner for her landlord and had asked her if she wanted to seeor use his cleaning van. At trial, victim B testified that he recognized the assailant as the personwho had asked victim A if she would like to go into his cleaning van. The record also disclosesthat a shirt that victim B described that the assailant was wearing the night of the incident wasdiscovered in defendant's apartment, boxer shorts that were found in victim A's apartment afterthe incident had defendant's DNA, a screwdriver that was also found in victim A's apartmentmatched a tool set owned by defendant and defendant's supervisor testified that defendant wasscheduled to work on the night in question but failed to come in. An inmate, who befriendeddefendant while they were incarcerated, testified that defendant told him about an incident wherehe broke into an apartment, forced himself on top of "this girl" to try to have sex with her,choked her and identified himself to her as a neighbor. Although a contrary result would not havebeen unreasonable, viewing the evidence in a neutral light, we are satisfied that the verdict wassupported by the weight of the evidence (see People v Wilson, 164 AD3d 1012, 1015 [2018]).[FN1]
Defendant's contention that the identification testimony provided by victim B should nothave been admitted is unpreserved in the absence of an objection, a motion to strike suchtestimony or a request for a limiting instruction (see People v Brooks, 26 AD3d 596, 597 [2006]). Defendant alsodid not object or raise any issue with respect to County Court's voir dire of victim B indetermining whether he was competent to testify at trial and, therefore, any challenge thereto islikewise unpreserved (see CPL 470.05 [2]). Were this issue before us, we would find,based upon our review of the court's questioning of victim B, no abuse of discretion in the court'sdetermination that victim B was competent to testify (see People v Miller, 295 AD2d746, 747-748 [2002]; People v Dehler, 216 AD2d 643, 644 [1995], lv denied 86NY2d 734 [1995]).
Defendant contends that the photo array was unduly suggestive because he appeared tallerthan the other males in the array, and he was the only one with a shirt unbuttoned at the collarthat exposed his skin. This specific argument, however, is unpreserved for our review given thatdefendant did not raise it before the Judicial Hearing Officer at the Wade hearing (see People v Davis, 18 AD3d1016, 1017 [2005], lv denied 5 NY3d 805 [2005]). In any event, defendant'sargument as to the discrepancies in each photo in the array is without merit (see People v Matthews, 101 AD3d1363, 1364 [2012], lv denied 20 NY3d 1101 [2013]). Furthermore, the JudicialHearing Officer found that the backgrounds in each photo were "similarly nondescript and plain"and that the six males depicted in the array were "sufficiently similar in appearance." Upon ourreview of the photo array and given that the Judicial Hearing Officer's findings are entitled togreat weight, we conclude that the photo array was not unduly suggestive (see People v Hawkins, 167 AD3d1071, 1073 [2018]; People vSmith, 157 AD3d 978, 979 [2018], lv denied 31 NY3d 1087 [2018]).
Finally, taking into account the violent and heinous nature of the committed crimes, and inthe absence of any extraordinary circumstances or abuse of discretion, we find that the imposedsentence was not harsh or excessive (seePeople v Mathews, 134 AD3d 1248, 1251 [2015]; People v Blackman, 90 AD3d 1304, 1310-1311 [2011], lvdenied 19 NY3d 971 [2012]).[FN2] Contrary to defendant's assertion, County Courtdid not err when it ordered that the concurrent sentences imposed upon his convictions of counts3, 9 and 10—charges that related to the attack on victim B—run consecutively tothe sentences imposed upon his convictions of counts 1, 2, 4, 5, 6, 7 and 8—charges thatrelated to the attack on victim A (see People v Jeanty, 268 AD2d 675, 680 [2000], lvdenied 94 NY2d 949 [2000]; People v Jenkins, 256 AD2d 735, 737 [1998], lvdenied 93 NY2d 854 [1999]). Nor did the court err in directing that the sentence imposed oncount 4 (rape in the first degree by forcible compulsion) run consecutively to the concurrentsentences imposed on counts 1, 2, 5, 6, 7 and 8 given that these offenses arose from separate anddistinct acts (see People v Webb, 184 AD2d 920, 921 [1992], lv denied 80 NY2d935 [1992]; People v Wales, 138 AD2d 766, 769 [1988], lv denied 72 NY2d 868[1988]). Indeed, "the fact that the offenses were committed within a brief period does notconstitute one continuous act warranting the imposition of concurrent sentences" (People v Kownack, 20 AD3d 681,682 [2005]). Defendant's remaining arguments, including his claim that he received theineffective assistance of counsel, have been examined and are without merit.
Egan Jr., J.P., Lynch, Devine and Rumsey, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1:In view of our determination,defendant's argument that the instructions to the grand jury were defective is precluded (see People v Gaston, 147 AD3d1219, 1220 n 2 [2017]; People vCarter, 140 AD3d 1394, 1396 [2016], lv denied 28 NY3d 969 [2016]) and, inany event, is without merit.
Footnote 2:The aggregate prison sentence of75 years is reduced, by operation of law, to 50 years (see Penal Law § 70.30[1] [e] [vii]; People v Hartle, 159AD3d 1149, 1150 n [2018], lv denied 31 NY3d 1082 [2018]).