| People v Flower |
| 2019 NY Slip Op 05019 [173 AD3d 1449] |
| June 20, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Jeffrey D. Flower, Appellant. |
Paul J. Connolly, Delmar, for appellant.
P. David Soares, District Attorney, Albany (Emily Schultz of counsel), for respondent.
Pritzker, J. Appeals (1) from a judgment of the County Court of Albany County (Young, J.),rendered October 26, 2016, upon a verdict convicting defendant of the crimes of rape in the firstdegree (two counts), rape in the third degree and endangering the welfare of a child (two counts),and (2) by permission, from an order of said court, entered July 7, 2017, which denieddefendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without ahearing.
Defendant was charged by indictment with two counts of rape in the first degree (counts 1and 3), one count of rape in the third degree (count 2) and two counts of endangering the welfareof a child (counts 4 and 5). Counts 1 through 4 stemmed from defendant's sexual conduct withvictim A, who was the daughter of defendant's long-term girlfriend (hereinafter the mother).Count 5 stemmed from defendant's inappropriate conduct with victim B, who was a friend ofvictim A. Following a jury trial, defendant was convicted as charged. On the four convictionsrelating to victim A, defendant was sentenced to four concurrent prison terms, the greatest ofwhich was 25 years, followed by 15 years of postrelease supervision, and, with regard to theendangering the welfare of a child conviction involving victim B, defendant was sentenced to aone-year jail term, with that sentence to run consecutively to the other four sentences. Defendantthereafter moved pursuant to CPL 440.10 to vacate the judgment of conviction on the ground thathe received the ineffective assistance of counsel. County Court denied the motion without ahearing. Defendant appeals from the judgment of conviction and, by permission, from the orderdenying his CPL 440.10 motion.
Defendant argues that his two convictions of rape in the first degree (counts 1 and 3) and hisconviction of endangering the welfare of a child as to victim B (count 5) were not supported bylegally sufficient evidence and were against the weight of the evidence. "In conducting a legalsufficiency analysis, this Court views the evidence in the light most favorable to the People andevaluates whether there is any valid line of reasoning and permissible inferences which couldlead a rational person to the conclusion reached by the jury on the basis of the evidence at trialand as a matter of law satisfy the proof and burden requirements for every element of the crimecharged" (People v Hartle, 159AD3d 1149, 1151 [2018] [internal quotation marks and citations omitted], lv denied31 NY3d 1082 [2018]; see People vNelligan, 135 AD3d 1075, 1076 [2016], lv denied 27 NY3d 1072 [2016]). "Incontrast, a weight of the evidence analysis requires us to first determine, based on all of thecredible evidence, whether a different result would have been unreasonable and, if not, weigh therelative probative force of conflicting testimony and the relative strength of conflicting inferencesthat may be drawn from the testimony to determine if the verdict is supported by the weight ofthe evidence" (People v Wilson, 164AD3d 1012, 1014 [2018] [citations omitted]; see People v Perry, 154 AD3d 1168, 1169 [2017]).
We turn first to defendant's contentions regarding his convictions for rape in the first degree.Victim A testified that, in October 2012, when she was 15 years old, both she and defendantwere sick and, because of this, the mother had victim A and defendant sleep in the same room ina bed together. Victim A testified that one night, in December 2012, she woke up in bed notwearing any of the clothes that she had on when she fell asleep. She explained that defendant,whose legs were on either side of her body near her thighs, was holding her wrists as he forcedhis penis into her vagina. She further explained that she tried to move away, but defendant, inresponse, applied more pressure on her wrists, holding her down tighter. Victim A also testifiedthat she attempted to lift her arms, but that defendant slammed them back down. Victim Aexplained that, immediately after the incident, defendant told her to be quiet and not to sayanything and that, about a week later, defendant began telling her that if she told anyone whathad happened, the mother would hate her and that she would not be able to see her brother.
Victim A explained that defendant, during the years that followed, continued to wake her upapproximately once per week to engage in sexual conduct. She stated that she eventually did notfight as much because "it was just what [her] life was going to be [like]." According to victim A,she would try not to sleep in the same bed with defendant, but the mother would typically say no.Victim A also testified about two instances—one when she called out for the mother andanother when her brother walked into the room when defendant was on top of her. Victim Atestified that the last time that defendant had sexual intercourse with her was in March 2015.Victim A explained that she woke up and defendant, who was halfway on the bed, had alreadyput his penis into her vagina. Victim A further explained that defendant was holding her armsand that, when she tried to pull her arms upwards out of defendant's grip, he held her arms downtighter, placing pressure on her arms, which prevented her from moving. Victim A testified thatshe moved out shortly after this last incident.
The mother testified that, after victim A recovered from being sick, she never made victim Asleep in the bed with defendant, but that victim A continued to do so for three years. The motherfurther testified that she suspected something was happening in the room and that she once heardvictim A calling her name but, when she entered the bedroom, victim A said that nothing washappening. The mother acknowledged that there came a time when victim A's brother told herthat he thought he saw something, but when the mother asked victim A about it, she said nothing.The mother also testified that there came a time when she and defendant told a neighbor, wholived in the apartment below theirs, that defendant and victim A had a relationship when victimA was 17 years old. The neighbor testified that defendant told her that he had been in arelationship with victim A for three years. The neighbor asked defendant to clarify what kind ofrelationship it was, to which defendant replied that it was a sexual relationship, emphasizing thathe waited until victim A was 15 years old before he pursued the relationship because, in his view,that "was more of a legal age."
A friend of victim A testified that, on April 19, 2015, defendant sent her text messageswherein he stated that he had a consensual sexual relationship with victim A that had beenongoing for about one year. This friend further testified that, after informing victim A aboutthose text messages, she and victim A went downstairs to speak to victim A's aunt. The aunt alsotestified about what occurred on April 19, 2015, explaining that victim A came to her appearing"[v]ery upset and scared" and that, in response to the conversation that they had, she took victimA to the local police department. The aunt added that she received text messages fromdefendant's cell phone a couple of months later in which he said twice that "you can't rape thewilling." Defendant testified on his own behalf regarding sexual conduct with victim A andstated that he did nothing of a sexual nature while he slept next to her until she was 17 years old.Defendant explained that, one day, victim A approached him and said that she could be hisgirlfriend and that, after they discussed it, things escalated between them. A couple of weekslater, the relationship became physical and, according to defendant, he and victim A then had aconsensual sexual relationship.
In our view, the foregoing evidence, viewed in the light most favorable to the People,provided a valid line of reasoning and permissible inferences from which a rational juror couldconclude that defendant committed the crime of rape in the first degree by engaging in sexualintercourse with victim A, without her consent and by forcible compulsion, in December 2012and March 2015 as charged in the indictment (see Penal Law § 130.35 [1];People v Wilson, 164 AD3d at 1015). Victim A testified both to her lack of consentduring these two incidents, as well as defendant's use of physical force, specifically holding herdown so that she could not get away (see Penal Law § 130.00 [8]). Givendefendant's testimony that the sexual relationship was consensual and did not begin until victimA was 17, a different verdict would not have been unreasonable. However, "viewing the evidencein a neutral light and deferring to the jury's credibility determinations" (People v Henry, 166 AD3d 1289,1292 [2018]), we find that the verdict as to defendant's convictions for rape in the first degreewas supported by the weight of the credible evidence (see People v Madsen, 168 AD3d 1134, 1137 [2019]; People v Chaneyfield, 157 AD3d996, 1000 [2018], lv denied 31 NY3d 1012 [2018]).
Regarding defendant's conviction for endangering the welfare of a child as to victim B,victim B testified that, in September 2015, when she was 13 years old, she was at the mother'sresidence—where she planned to spend the night—after having spent the day at alake with defendant, the mother, victim A's brother and victim B's brother. After everyone butdefendant and victim B left the mother's residence, victim B went into the bathroom to take ashower. While she was in the shower, defendant came into the bathroom twice. The first time itsounded as if defendant was on the phone and he used the toilet. Shortly thereafter, defendantreentered the bathroom and told victim B that there was a leak in the bathtub, that she needed toimmediately turn the shower off and that he either had to hand her a towel or she needed to "trusthim" while he checked the sides of the bathtub to ensure there was no leak. Victim B testifiedthat she had defendant hand her a towel, which she placed in front of herself while defendantinspected the tub. Defendant then told victim B that she could quickly finish her shower. VictimB testified that she did not see any leak in the bathroom before or after her shower. Shortlythereafter, victim B put her clothes on and went to the living room where defendant was sitting.Victim B sat on the couch and, after a little while, she noticed that defendant was breathingheavily and appeared red in the face. Victim B repeatedly asked defendant what was wrong, anddefendant replied, "You don't want to know." Victim B testified that defendant kept looking ather and that, at one point, he said, "I was trying to look at you." When victim B did not respond,defendant asked, "Are you okay? Are you confused? You must be confused? I'm sorry I feel soguilty," and he also said that "he shouldn't have done this again." Victim B explained that she feltshocked and as if she was "frozen in time."
Victim B testified that her brother returned to the residence soon after and repeatedly askedher if she was okay. Defendant said to victim B's brother, "Your sister hates me, your sister hatesme." Victim B also explained that, the week following this incident, defendant texted her sayingthat he was sorry and that, if she ever wanted to spend time at his residence, he would not bethere. Victim B explained that she did not initially tell anyone because, at first, she felt nervousand confused and then felt as though it was her fault. Victim B's brother testified and confirmedvictim B's account of what occurred that day. Victim B's brother also testified that, when he andvictim A's brother took showers later that same night, no one mentioned a leak, nor did he seeany water leaking out of the bathroom. The neighbor testified that she had never experiencedleaking from the area around where the mother's bathroom was located. The neighbor alsorecalled that defendant had introduced her to victim B at a time when it appeared that they werethe only people in the apartment.
Given this testimony, a strong inference may be drawn that defendant'sconduct—while victim B was in the shower and when he admittedly attempted to look ather shortly thereafter—was likely to be injurious to the physical, mental or moral welfareof victim B. A strong inference can also be drawn from victim B's testimony regardingdefendant's statements following the inappropriate conduct—including his admission thathe felt "guilty"—that defendant had knowingly engaged in said conduct (see e.g. People v Salazar, 132 AD3d418, 419 [2015], lv denied 26 NY3d 1150 [2016]). Therefore, viewing the evidencein the light most favorable to the People, we find that the verdict as to defendant's conviction forendangering the welfare of a child under count 5 was supported by legally sufficient evidence (see People v Bueno, 18 NY3d 160,169 [2011]; People v Ryder, 146AD3d 1022, 1023 [2017], lv denied 29 NY3d 1086 [2017]).[FN*] Although there was not any conflictingevidence presented as to this conviction, the jury could have found victim B and her brother notto be credible, and, as such, a different verdict would not have been unreasonable. However,"viewing the evidence in a neutral light and deferring to the jury's credibility determinations"(People v Henry, 166 AD3d at 1292), we find that the verdict as to this conviction wassupported by the weight of the credible evidence (see People v Madsen, 168 AD3d at1137; People v Chaneyfield, 157 AD3d at 1000).
Defendant also asserts that the two counts of rape in the first degree and the one count ofrape in the third degree were duplicitous because these counts charged multiple offenses. Asdefendant concedes, this issue is unpreserved as there was neither a motion to dismiss thesecounts prior to trial nor at the time of victim A's testimony (see People v Weber, 25 AD3d 919, 922 [2006], lv denied 6NY3d 839 [2006]; compare People vDalton, 27 AD3d 779, 781 [2006], lv denied 7 NY3d 754 [2006], lv deniedupon reconsideration 7 NY3d 811 [2006]). Were this issue before us, we would find it to bewithout merit (see People v Weber, 25 AD3d at 922; compare People v Madsen,168 AD3d at 1139). Defendant's further contentions that he was deprived of a fair trial due to theimproper admission of prior bad acts and the absence of limiting instructions are alsounpreserved for our review—as he concedes—given his failure to object to saidalleged errors (see People v Cayea,163 AD3d 1279, 1280 [2018], lv denied 32 NY3d 1109 [2018]). Were these issuesbefore us, we would have found them to be without merit; the testimony regarding defendant'sprior bad acts was probative of material issues of fact and its probative value outweighed anyundue prejudice (see People vKnox, 167 AD3d 1324, 1326 [2018], lv denied 33 NY3d 950 [2019]), and anyerror by County Court in failing to provide limiting instructions where necessary was harmlessgiven the overwhelming evidence of defendant's guilt (see People v Burnell, 89 AD3d 1118, 1121 [2011], lvdenied 18 NY3d 922 [2012]).
Defendant also argues that County Court erred in denying his motion to sever counts 1through 4 of the indictment, which related to victim A, from count 5 of the indictment, whichrelated to victim B. Although the counts related to different victims, they "were statutorilyjoinable because they were 'the same or similar in law' " (People v Nickel, 14 AD3d 869,870 [2005], lv denied 4 NY3d 834 [2005], quoting CPL 200.20 [2] [c]). Inasmuch as theoffenses were joined solely for this reason, whether to sever the counts is a determination thatrests within County Court's sound discretion (see CPL 200.20 [3]; People vJohnson, 268 AD2d 891, 893 [2000], lv denied 94 NY2d 921 [2000]), which wecannot say was abused here. The victims presented proof as to the charges that respectivelyrelated to them, and neither victim referenced the conduct underlying the charge or charges thatdid not relate to them. The two witnesses who provided relevant testimony as to both victims didnot conflate the victims, and it was clear as to which victim these witnesses were testifyingabout. Accordingly, the jury could easily separate the proof on the count or counts involving eachvictim (see People v Nickel, 14 AD3d at 870). Further, although defendant alleged that itwas in his best interest to testify about the incident that occurred with victim B but not as toincidents regarding victim A, this was not sufficiently explained or supported (see CPL200.20 [3] [b]; People v Young, 48AD3d 901, 904 [2008]); ultimately, defendant testified as to the counts involving victim Abut not victim B. Based on the foregoing, County Court did not abuse its discretion in denyingthe severance motion (see People v Young, 48 AD3d at 904; People v Nickel, 14AD3d at 870).
Defendant also contends that reversal is required based upon a curative instruction given tothe jury. During the People's direct case, Jeffrey Lockhart, a police detective, twice referencedthat he was unable to speak with defendant because defendant had retained an attorney. At theclose of the People's direct examination of Lockhart, the People requested a curative instructionregarding defendant's right to counsel, and County Court, the People and defendant's attorney allagreed to a curative instruction. Defendant subsequently moved for a mistrial and objected to thecurative instruction. The court denied the motion and provided the curative instruction. It is wellsettled that a defendant's invocation of his or her right to counsel or right againstself-incrimination cannot be used against him or her on the People's direct case (see People v Johnson, 150 AD3d1390, 1395 [2017], lv denied 29 NY3d 1128 [2017]; People v Capers, 129 AD3d 1313,1317 [2015], lv denied 27 NY3d 994 [2016]). Although it was error for Lockhart toreference defendant's invocation of his right to counsel and to remain silent, reversal is notrequired because this error was harmless beyond a reasonable doubt. Nor do we find that reversalis required because County Court delivered the curative instruction at the request of the Peopleover defendant's objection. Once the error was brought to the court's attention—albeit bythe People—the court was able to address the error in a manner that it found appropriate.However, defendant is correct that the instruction was not sufficient to completely cure the error,as it referenced only his right to counsel and not his right to remain silent. Notwithstanding thisdeficiency, reversal is not required because this error was harmless inasmuch as the proof ofdefendant's guilt was overwhelming, and there is no reasonable possibility that it might havecontributed to defendant's convictions (see People v Johnson, 150 AD3d at 1396;People v Capers, 129 AD3d at 1317-1318).
We are unpersuaded by defendant's argument that County Court abused its discretion inruling that defendant could not cross-examine victim A with a copy of unauthenticated textmessages. Although a defendant has a constitutional right to confront witnesses throughcross-examination, that right is not absolute (see People v Fields, 160 AD3d 1116, 1120 [2018], lvdenied 31 NY3d 1116 [2018]; People v Gooley, 156 AD3d 1231, 1232 [2017], lv denied31 NY3d 984 [2018]). Given that these text messages were not produced by defendant until afterthe People concluded their direct examination of victim A and they were not properlyauthenticated, it would have been highly prejudicial to the People to allow defendant tocross-examine victim A about them. As such, we discern no abuse of discretion in CountyCourt's ruling (see generally People v Fields, 160 AD3d at 1120; People v Alcarez, 141 AD3d 943,944 [2016], lv denied 28 NY3d 1025 [2016]).
Both on his direct appeal and his appeal from the denial of his CPL article 440 motion,defendant contends that he was deprived of the effective assistance of counsel. "To establish aclaim of ineffective assistance of counsel, defendant is required to demonstrate that he was notprovided meaningful representation and that there is an absence of strategic or other legitimateexplanations for counsel's allegedly deficient conduct" (People v Lancaster, 143 AD3d 1046, 1051 [2016] [internalquotation marks and citations omitted], lv denied 28 NY3d 1147 [2017]; see People v Ramos, 133 AD3d904, 909 [2015], lv denied 26 NY3d 1149 [2016]). To the extent that defendantcontends that it was error for defense counsel not to move to dismiss counts 1 through 3 of theindictment on the ground that they were duplicitous, said claim is unavailing as any such motionwould have had "little or no chance of success" (People v Johnson, 151 AD3d 1462, 1466 [2017] [internal quotationmarks and citations omitted], lv denied 30 NY3d 1106 [2018]). Defendant's remainingclaims of ineffective assistance due to counsel's failure to make various objections throughout thetrial are also without merit for similar reasons, and defendant has failed to establish the absenceof strategic or other legitimate explanations for counsel's alleged deficient conduct (seePeople v Flores, 84 NY2d 184, 187 [1994]; People v Rice, 162 AD3d 1244, 1247 [2018], lv denied 32NY3d 940 [2018]). After reviewing the record as a whole, we find that, viewed in totality,defense counsel provided meaningful representation (see People v Lancaster, 143 AD3dat 1051; People v Roshia, 133 AD3d1029, 1031 [2015]).
We also find that County Court was not required to conduct a hearing on defendant's CPLarticle 440 motion, which claimed that defense counsel failed to impeach victim A by usingFacebook and text messages and to do more to retrieve text messages that had been "overwritten." Initially, defense counsel attempted to cross-examine victim A as to text messages fromdefendant's phone, but, after objection by the People, County Court did not allow it. Furthermore,although defendant takes issue with defense counsel's attempts to recover text messages from hisphone, as he claims that these text messages could have exonerated him, this allegation isconclusory in nature and is, to some extent, contradicted by the record, as defense counsel statedat trial that her investigator was advised by the cell phone provider that these messages could notbe retrieved. Notably, defendant did not take issue with these representations at trial.Accordingly, because defendant did not support his claim of ineffective assistance of counselwith factual allegations that, if established, would entitle him to relief, County Court did not errin denying the motion without a hearing (see People v Carston, 163 AD3d 1166, 1168 [2018], lvdenied 32 NY3d 1002 [2018]; People v Pabon, 157 AD3d 1057, 1058-1059 [2018], lvdenied 31 NY3d 986 [2018]).
Finally, we find that defendant's sentence was neither harsh nor excessive. "[A] sentence thatfalls within the permissible statutory ranges will not be disturbed unless it can be shown that thesentencing court abused its discretion or that extraordinary circumstances exist warranting amodification in the interest of justice" (People v Simmons, 122 AD3d 1169, 1169 [2014] [internalquotation marks and citation omitted], lv denied 25 NY3d 1171 [2015]; see People v Malloy, 152 AD3d968, 971 [2017], lv denied 30 NY3d 981 [2017]). "Further, the mere fact that asentence imposed after trial is greater than that offered in connection with plea negotiations is notproof positive that [the] defendant was punished for asserting his [or her] right to trial"(People v Malloy, 152 AD3d at 971 [internal quotation marks, brackets and citationsomitted]; see People v Peart, 141AD3d 939, 942 [2016], lv denied 28 NY3d 1074 [2016]). Given the seriousness ofthe offenses, the predatory nature of defendant's behavior and his refusal to accept responsibility,we discern no basis upon which to disturb the sentence imposed by County Court (see People v Vega, 170 AD3d1266, 1274 [2019]; People v Malloy, 152 AD3d at 971).
Defendant's remaining contentions have been reviewed and are without merit.
Garry, P.J., Clark, Mulvey and Devine, JJ., concur. Ordered that the judgment and order areaffirmed.
Footnote *:"Because his convictions aresupported by legally sufficient trial evidence, defendant's challenges to the legal sufficiency ofthe evidence presented to the grand jury and the instructions given during that proceeding areprecluded" (People v Medeiros, 116AD3d 1096, 1099 n [2014] [citations omitted], lv denied 24 NY3d 1045 [2014];see CPL 210.30 [6]). Our review of the minutes does not reveal any other errors inpresenting the case to the grand jury that "impaired the integrity of the proceeding or causedprejudice to defendant so as to warrant the drastic remedy of reversal" (People v Gaston, 147 AD3d 1219,1220 n 2 [2017] [internal quotation marks, brackets and citation omitted]; see People v Robinson, 156 AD3d1123, 1128 n 8 [2017], lv denied 30 NY3d 1119 [2018]).