| People v Butkiewicz |
| 2019 NY Slip Op 06118 [175 AD3d 792] |
| August 8, 2019 |
| Appellate Division, Third Department |
[*1](August 8, 2019)
| The People of the State of New York,Respondent, v Michael J. Butkiewicz, Appellant. |
Rural Law Center of New York, Castleton (Kristin A. Bluvas of counsel), for appellant.
Jason M. Carusone, District Attorney, Lake George (Benjamin R. Smith of counsel), forrespondent.
Rumsey, J. Appeal from a judgment of the County Court of Warren County (Hall Jr., J.),rendered August 1, 2016, upon a verdict convicting defendant of the crimes of attempted rape inthe first degree, sexual abuse in the first degree, assault in the second degree, strangulation in thesecond degree and unlawful imprisonment in the second degree.
In a five-count indictment, defendant was charged with attempted rape in the first degree,sexual abuse in the first degree, assault in the second degree, strangulation in the second degreeand unlawful imprisonment in the second degree. Following a suppression hearing and a jurytrial, defendant was convicted as charged and sentenced to consecutive prison terms of 15 yearsfor his conviction of attempted rape in the first degree, seven years for his conviction of sexualabuse in the first degree and seven years for his conviction of strangulation in the second degree,and to lesser concurrent prison terms on the remaining convictions.[FN*] Defendant appeals.
Defendant contends that the verdict with respect to his conviction of attempted rape in thefirst degree is not supported by legally sufficient evidence or, in the alternative, is against theweight of the evidence. "When considering a challenge to the legal sufficiency of the evidence,we view the evidence in the light most favorable to the People and evaluate whether there is anyvalid line of reasoning and permissible inferences which could lead a rational person to theconclusion reached by the jury on the basis of the evidence at trial and as a matter of law satisfythe proof and burden requirements for every element of the crime charged" (People v Granger, 166 AD3d1377, 1378 [2018] [internal quotation marks and citations omitted]). In contrast, whenassessing the weight of the evidence, we first consider whether a different verdict would havebeen unreasonable and, if not, we "weigh the relative probative force of conflicting testimony andthe relative strength of conflicting inferences that may be drawn from the testimony" (People v McCoy, 169 AD3d 1260,1261-1262 [2019] [internal quotation marks and citations omitted], lv denied 33 NY3d1033 [2019]). As relevant here, a conviction for attempted rape in the first degree requires proofthat the defendant "intended and came dangerously close to engaging in forcible sexualintercourse" with another person (Peoplev Nehma, 101 AD3d 1170, 1171 [2012]; see Penal Law§§ 110.00, 130.35 [1]).
Defendant argues that the evidence at trial did not establish that he was dangerously close tocommitting rape in the first degree. We disagree. The victim testified that, at approximately 7:30p.m. on October 21, 2015, she was at her house when she heard the doorbell ring and, upontaking her dog by his collar, she opened the door "a little bit." The victim stated thatdefendant—whom she did not immediately recognize—informed her that he was"Mike from across the street" and had locked himself out of his house. He told the victim that hiscell phone was running out of battery, that his wife was at work and that he was wonderingwhether he could borrow a phone charger. She indicated that, once defendant was inside of herhouse, she noticed that he appeared "fidgety" and "unsettled," had "bloodshot" eyes and smelledof alcohol. The victim stated that, after learning that her phone charger was not compatible withhis cell phone, defendant asked whether he could use the victim's phone; when defendantattempted to call his wife, the cell phone inside of his pocket rang. According to the victim,defendant looked "surprised" and "flustered" and asked the victim to dial his wife's phonenumber for him. After dialing a phone number dictated by defendant, she handed him her cellphone and, when his phone calls went to voicemail, she sent a text message to defendant's wife toexplain the situation.
The victim stated that, while they were waiting to hear from defendant's wife, defendantasked her for a card to "slip the lock" of his house. According to the victim, defendantrepresented that he did not know what he was doing and requested that she assist him. Althoughthe victim thought it was "very strange" that defendant needed assistance, she agreed to help him.The victim explained that, when she and defendant arrived at his front door, he "immediately"placed his left hand on the doorknob. The victim further explained that, as she tried to "jimmythe lock with the card," she was unsure as to whether it would work because she did not have thedoorknob to turn. She testified that, when she saw the door open "a tiny bit," she "immediately"felt defendant's hand on the back of her neck. The victim stated that defendant—who, byher estimation, is about one foot taller and 100 pounds heavier than she—grabbed her andpushed her inside, causing her to land on her hands and knees. The victim recalled seeing "[b]ig,thick pieces of glass" all over the floor and thinking that "something really bad happened in thishouse already." The victim pleaded with defendant to let her go and, in response, he punched herin the face. As the victim screamed and continued to plead with defendant, defendant choked her,grabbed her around the waist and dragged her to a doorway between two rooms. According to thevictim, defendant then said that he was "going to cum inside of [her]" and, in response to anotherscream, either punched or choked her.
The victim recalled trying to keep her legs together and defendant ripping open her shirt andbra, pulling up her skirt and tearing off her tights. She further recalled that defendant forced herlegs open, pulled her underwear to the side and forced his fingers inside of her vagina. Thevictim testified that, while defendant appeared to be stroking himself, she continued to plead withhim until she realized that he had released her from his grip. The victim further testified that,after directing her to sit on the couch so that he could "think," defendant permitted her to leavehis house. Defendant, who testified on his own behalf, gave a different version of the events andmaintained that any sexual contact with the victim was consensual. Theforegoing—viewed in the light most favorable to the People—presented a valid lineof reasoning and permissible inferences from which a rational juror could conclude thatdefendant intended to commit rape and came dangerously close to doing so (see PenalLaw §§ 110.00, 130.35 [1]; People v Clyde, 18 NY3d 145, 155 [2011], cert denied 566US 944 [2012]; People v Lamagna,30 AD3d 1052, 1053 [2006], lv denied 7 NY3d 814 [2006]).
With respect to the weight of the evidence, defendant challenges the credibility of the victim,specifically pointing to inconsistences between the victim's testimony at trial and her testimonybefore the grand jury, as well as her statements to the police. Initially, it would not have beenunreasonable for the jury to have resolved the credibility issues differently in this case andreached the opposite conclusion. However, these inconsistences—all of which werethoroughly explored on cross-examination—"neither undermined [the victim's] testimonyin any meaningful respect nor rendered her testimony incredible as a matter of law" (People v St. Ives, 145 AD3d 1185,1187 [2016] [internal quotation marks and citations omitted], lv denied 29 NY3d 1036[2017]). Rather, any testimony from the victim at trial that differed from her grand jury testimonyor her statements to the police presented a credibility issue for the jury to resolve (see People v Introne, 172 AD3d1538, 1539 [2019]; People vWells, 141 AD3d 1013, 1023 [2016], lv denied 28 NY3d 1189 [2017]).According deference to the jury's credibility assessments, and viewing the evidence in a neutrallight, we conclude that the verdict convicting defendant of attempted rape in the first degree issupported by the weight of the evidence (see People v Hackett, 167 AD3d 1090, 1093-1094 [2018]; People v Bautista, 147 AD3d1214, 1216-1217 [2017]; People v Nehma, 101 AD3d at 1171; People v Shofkom, 63 AD3d 1286,1287 [2009], lv denied 13 NY3d 799 [2009], appeal dismissed 13 NY3d 933[2010]).
We are unpersuaded by defendant's contention that County Court erred in denying his motionto suppress evidence obtained from his cell phone because his wife did not have commonauthority over it. The police may lawfully conduct a warrantless search by " 'showing thatpermission to search was obtained from a third party who possessed common authority over orother sufficient relationship to the premises or effects sought to be inspected' "(People v Gonzalez, 88 NY2d 289, 293 [1996] [brackets and emphasis omitted], quotingUnited States v Matlock, 415 US 164, 171 [1974]; see People v Adams, 53 NY2d1, 8 [1981], cert denied 454 US 854 [1981]). Common authority is not to be construed "inany narrow property law sense, but 'rather on mutual use of the property by persons generallyhaving joint access or control for most purposes, so that it is reasonable to recognize that any ofsuch persons has the right to permit the inspection in his [or her] own right and that the othershave assumed the risk that one of their number might permit the common area to besearched' " (People v Gonzalez, 88 NY2d at 293 [emphasis and bracketsomitted], quoting United States v Matlock, 415 US at 171 n 7; see People v Loomis, 17 AD3d1019, 1020 [2005], lv denied 5 NY3d 830 [2005]). The People have the burden ofproving by a preponderance of the evidence that the facts available when the consent to search isprovided reasonably warrant the belief that the consenting party had authority over the premisesto be searched; "[i]f not, then warrantless entry without further inquiry is unlawful unlessactual authority exists" (People v Gonzalez, 88 NY2d at 295 [internal quotation marksand citation omitted]).
At the suppression hearing, a police lieutenant testified that, when he interviewed defendant'swife at the police station, she informed him that she possessed a cell phone used by defendant. Itwas uncontroverted that defendant's wife owned the cell phone, that she was the account holderand that the cell phone was not password protected. According to the lieutenant, defendant's wiferepresented that she had taken the cell phone from defendant earlier in the evening in order tosearch its contents. Defendant's wife ultimately signed a consent form authorizing a search of thecell phone. These circumstances, especially the fact that defendant left the cell phone withoutpassword protection where it could be accessed by his wife, reasonably justified the investigator'sbelief that the wife had common authority to consent to a search of the cell phone (seeGhanbari v State of Texas, 2019 WL 1649455, *13, 2019 Tex App LEXIS 3119, *38-39[Apr. 17, 2019, No. 05-17-00257-CR]; United States v Jackson, 2015 WL 4509452, *7,2015 US Dist LEXIS 97143, *12-13 [June 12, 2015 report and recommendation by Carter, J.],2015 US Dist LEXIS 97119 [ED Tenn, July 24, 2015, No. 1:14-CR-29], affd 700 FedAppx 411 [6th Cir 2017]; see also United States v Eugene, 2018 WL 1158293, *2, 2018CCA LEXIS 106, *5-6 [Feb. 28, 2018, No. ARMY 20160438], affd 78 MJ 132 [CAAF2018]). Accordingly, County Court properly denied defendant's motion to suppress evidencetaken from his cell phone.
We agree with defendant, and the People correctly concede, that County Court erred indirecting that the sentence on the attempted rape in the first degree conviction run consecutivelyto the sentence imposed on the sexual abuse in the first degree conviction. Sentences may not runconsecutively "(1) where a single act constitutes two offenses, or (2) where a single actconstitutes one of the offenses and a material element of the other," and it is the People's burdento establish legality (People vTaveras, 12 NY3d 21, 25 [2009] [internal quotation marks and citation omitted];see Penal Law § 70.25 [2]; People v Felipe, 79 AD3d 1454, 1456 [2010]). Here, the victimtestified that defendant told her that he was "going to cum inside of [her]" and thereafter forcedhis fingers inside of her vagina. As the jury may have convicted defendant of sexual abuse in thefirst degree based upon the same act that constituted attempted rape in the first degree, weconclude that County Court should have ordered the sentences on those convictions to runconcurrently (see People v Alford,14 NY3d 846, 847-848 [2010]; People v Felipe, 79 AD3d at 1456). Defendant'sremaining contention has been rendered academic by our decision.
Mulvey and Devine, JJ., concur.
Clark, J.P. (concurring). We respectfully disagree with the majority's conclusion that CountyCourt properly denied defendant's motion to suppress the evidence obtained from his cell phone.However, because we find the error to be harmless, we concur in the determination to affirm thejudgment of conviction, as modified by the majority.
As the majority notes, the police may lawfully conduct a warrantless search upon obtainingpermission " 'from a third party who possesse[s] common authority over or othersufficient relationship to the premises or effects sought to be inspected' " (People vGonzalez, 88 NY2d 289, 293 [1996], quoting United States v Matlock, 415 US 164,171 [1974] [emphasis omitted]). "Common authority rests on the 'mutual use of theproperty by persons generally having joint access or control for most purposes, sothat it is reasonable to recognize that any of [those persons] has the right to permit the inspectionin his [or her] own right and that the others have assumed the risk that one of their number mightpermit the common [property] to be searched' " (People v Loomis, 17 AD3d 1019, 1020 [2005], lv denied 5NY3d 830 [2005] [emphasis added], quoting United States v Matlock, 415 US at 171 n 7,172; see People v McMahon, 238 AD2d 834, 836-837 [1997]). Where the police believethat the consenting third party possessed common authority over the item to be searched, but heor she does not actually possess such common authority, the People bear the burden of proving,by a preponderance of the evidence, that the information available to the police at the time wouldcause a person of reasonable caution to form such belief (see People v Gonzalez, 88NY2d at 295).
The hearing testimony established that defendant's wife had physical possession ofdefendant's cell phone during her police interview, that the cell phone was not passwordprotected and that the wife had represented to the police that she was the account holder andowner of the cell phone. However, according to the lieutenant who interviewed her, the wife alsorepresented that the cell phone was solely used by defendant and that she had a separate cellphone for her own personal use. There was no testimony as to the extent that the wife ordinarilyhad access to, usage of or control over the cell phone and its contents (compare United Statesv Eugene, 2018 WL 1158293, *2, 2018 CCA LEXIS 106, *5-6 [Feb. 28, 2018, No. ARMY20160438], affd 78 MJ 132 [CAAF 2018]). Nor was there sufficient informationregarding the circumstances under which the wife came to physically possess the cell phone, suchas whether defendant has provided the wife with the cell phone or whether he was even aware ofsuch possession (compare United States v Eugene, 2018 WL 1158293, *2, 2018 CCALEXIS 106, *5-6). In fact, the testimony demonstrated that the wife had taken the cell phonesometime prior to the interview in an attempt to confirm her suspicions of infidelity, therebysuggesting that she did not regularly use, have access to or control over the cell phone, despiteher status as the account holder. Given the scope of the privacy interests at stake—due tothe fact that today's cell phones contain "a digital record of nearly every aspect of [a person's]li[fe]" (Riley v California, 573 US 373, 395 [2014])—it is our opinion that theevidence presented by the People falls far short of establishing that the wife had actual authorityto consent to the warrantless search of defendant's cell phone or that the police had a reasonablebasis for believing that she and defendant shared common authority over the phone (seePeople v Gonzalez, 88 NY2d at 294-296; compare People v Loomis, 17 AD3d at1020). As such, County Court should have granted defendant's motion to suppress the evidencefound on his cell phone (see People vHolmes, 89 AD3d 1491, 1492 [2011]). Nevertheless, because there was overwhelmingproof of defendant's guilt and because the evidence obtained from defendant's cell phone wascumulative of the lawfully acquired evidence from the victim's cell phone, there is no reasonablepossibility that the admission of the tainted evidence might have contributed to defendant'sconviction and, thus, the error was harmless beyond a reasonable doubt (see People v Burdine, 147 AD3d1471, 1472 [2017], lv denied 29 NY3d 1076 [2017]; see generally People vCrimmins, 36 NY2d 230, 237 [1975]). Accordingly, as County Court's error does not requirereversal of the judgment of conviction and because we agree with the majority in all otherrespects, we concur.
Aarons, J., concurs. Ordered that the judgment is modified, on the law, by directing thatdefendant's sentence for sexual abuse in the first degree under count 2 of the indictment shall runconcurrently to the sentence for attempted rape in the first degree under count 1 of theindictment, and, as so modified, affirmed.
Footnote *:Defendant was also sentenced tovarious periods of postrelease supervision.