| People v McClendon |
| 2021 NY Slip Op 06573 [199 AD3d 1233] |
| November 24, 2021 |
| Appellate Division, Third Department |
[*1](November 24, 2021)
| The People of the State of New York,Respondent, v James McClendon, Appellant. |
Mitchell S. Kessler, Cohoes, for appellant, and appellant pro se.
P. David Soares, District Attorney, Albany (Vincent Stark of counsel), for respondent.
Aarons, J. Appeal from a judgment of the Supreme Court (Breslin, J.), rendered July 6, 2016in Albany County, upon a verdict convicting defendant of the crimes of sexual abuse in the firstdegree, criminal obstruction of breathing or blood circulation, assault in the third degree,endangering the welfare of a child (two counts) and coercion in the first degree.
In 2015, defendant was involved in an altercation with his then-girlfriend (hereinafter thevictim) wherein he choked, struck and digitally penetrated her. The victim was eventually able toescape and call the police. Defendant, however, located the victim, told her that she "better nothave called the police" and threatened to kill her. In connection with this incident, defendant wascharged by indictment with sexual abuse in the first degree, criminal obstruction of breathing orblood circulation, assault in the third degree, two counts of endangering the welfare of a childand coercion in the first degree. A jury trial was held, after which defendant was convicted ascharged. Defendant was sentenced, as a second violent felony offender, to a prison term of sixyears, to be followed by 10 years of postrelease supervision, for the conviction of sexual abuse inthe first degree and to lesser concurrent terms of imprisonment for each misdemeanor conviction.Defendant was also sentenced to a prison term of 2 to 4 years for his conviction of coercion inthe first degree, which was ordered to run consecutively to the other concurrent prison terms. Anorder of protection was also issued in favor of the victim. Defendant appeals.
Defendant first challenges his conviction of coercion in first degree as not being supported bylegally sufficient evidence. As relevant here, the People were obligated to prove that defendantcommitted the crime of coercion in the second degree "by instilling in the victim a fear that he. . . will cause physical injury to a person or cause damage to property" (Penal Law[former § 135.65 (1)]). Under the version of the statute at the relevant time, aperson is guilty of coercion in the second degree if he or she "induces a person . . .to abstain from engaging in conduct in which he or she has a legal right to engage. . . by means of instilling in him or her a fear that, if the demand is not compliedwith, the actor or another will . . . [c]ause physical injury to a person" (Penal Law[former § 135.60 (1)]).
At trial, the victim testified that defendant got angry with her and then hit her on the head,slammed her to the ground and started to choke her. The victim's two youngest children heard thefight and the victim's cries and checked on the victim. Defendant told the victim to make themleave and also told the children that he would beat them if they did not leave. According to thevictim, defendant continued to verbally berate her and then digitally penetrated her. After thevictim's oldest child returned to the residence, defendant told the victim to go downstairs [*2]and take a shower because he wanted to have sexualintercourse.
The victim stated that she told defendant that she was going to take a shower but instead tookher cell phone, tucked it in her shirt, went outside, walked down the street and called 911. Thevictim then spoke with the oldest child, who had called her, and informed her that she hadcontacted the police. As she was doing so, and walking to the location where she was to meet lawenforcement, defendant ran behind her, snatched her phone and told her that she "better not havecalled the police." The victim testified that she denied having called the police. Defendant lookedthrough the victim's cell phone but the call to 911 did not show in the outgoing calls. The victimstated that, as she and defendant were walking back to her residence, she did so slowly.Defendant then saw the police and, according to the victim, he remarked to her, "[You] betternot." The victim testified that, as the police officers approached defendant, she slid away andinformed them that defendant was going to beat her. Defendant was then taken away by theofficers.
Defendant premises his legal sufficiency argument on the notion that, because the victim wasable to call the police, the People failed to establish that he caused her to abstain from engagingin conduct that she was legally permitted to engage in due to fear of physical injury to her oranother person. We agree. According to the count in the indictment charging defendant withcoercion in the first degree, defendant compelled the victim "to abstain from utilizing her cell[]phone to call for help[ ] by means of instilling in her a fear that if the demand [was] notcomplied with, . . . defendant would cause physical injury to a person." Asdefendant notes, the victim left the house and, in fact, called 911 on her cell phone. The victimwas questioned as to why she did not call the police from the house. In response, the victim didnot testify that she did not do so due to a fear that defendant would physically harm her or herchildren. She instead responded that she did not try to contact the police in front of defendantbecause she knew he would take her phone away from her. Taking the phone away, however,does not constitute physical injury to a person. In addition, defendant's comments to the effectthat the victim better not have called the police only came after she had already done so. As such,defendant's threatening remarks did not prevent her from contacting law enforcement on her cellphone.
When viewing the evidence in the light most favorable to the People, the evidence was notlegally sufficient to support the conviction for coercion in the first degree (compare People v Anatriello, 161AD3d 1383, 1385-1386 [2018], lv denied 31 NY3d 1144 [2018]). To the extent thatthe People rely on evidence that defendant tried to get the victim off the street as they returned tothe house and tried to prevent her from rendezvousing [*3]withthe police or speaking to them when they arrived, this was not the theory of the People's case.Accordingly, the count charging defendant with coercion in the first degree must be dismissed(cf. People v Singh, 109 AD3d1010, 1012 [2013], lv denied 23 NY3d 1067 [2014]).
In view of this determination, defendant's contentions that the verdict convicting him ofcoercion in the first degree was against the weight of the evidence, that his counsel wasineffective for failing to request that coercion in the second degree be charged as a lesserincluded charge, that Supreme Court erred in directing that the sentence for coercion in the firstdegree run consecutively to the other imposed sentences and that the sentence was harsh andexcessive, insofar as it relates to the conviction for coercion in the first degree, are academic. Tothe extent that defendant argues that his counsel was ineffective by failing to interview witnessesor investigate certain matters, this involves matters outside the record and are better suited for aCPL article 440 motion (see People vDelbrey, 179 AD3d 1292, 1298-1299 [2020], lv denied 35 NY3d 969 [2020]; People v Lewis, 143 AD3d 1183,1185 [2016]). Defendant's remaining grievances with his counsel are unavailing, especially whenconsidering that counsel made pretrial motions, gave opening and closing statements, offeredproof, vigorously cross-examined witnesses and raised successful objections (see People v Bush, 184 AD3d1003, 1009 [2020], lv denied 35 NY3d 1093 [2020]; People v Brown, 169 AD3d 1258,1260 [2019], lv denied 33 NY3d 1029 [2019]).
Defendant's weight of the evidence argument regarding the remaining charges is withoutmerit. As to these charges, a contrary result would not have been unreasonable had the jurybelieved defendant's testimony about the events at issue (see People v Barzee, 190 AD3d 1016, 1019 [2021], lvdenied 36 NY3d 1094 [2021]). Nevertheless, the victim testified about the physicalaltercation that took place, that it occurred in front of the children and that defendant digitallypenetrated her, and it was within the province of the jury to credit this testimony. When alsoviewing the evidence of the victim's physical injuries in a neutral light, the verdict with respect tothese convictions was not against the weight of the evidence (see generally People vBleakley, 69 NY2d 490 [1987]).
As to the claim that the sentence was harsh and excessive, insofar as it pertains to theconvictions other than the one for coercion in the first degree, taking into account the violentnature of the crimes committed, defendant's criminal history and the fact that defendantexpressed no remorse for his actions, we cannot say that Supreme Court abused its discretion orthat extraordinary circumstances exist warranting a modification of the sentence in the interest ofjustice (see People v Dawson, 195AD3d 1157, 1163 [2021]). Furthermore, although the imposed sentence was greater thanwhat was [*4]offered in a pretrial plea offer, such mere fact doesnot demonstrate that defendant was punished for exercising his right to trial (see People v Cummings, 188 AD3d1449, 1454 [2020], lv denied 36 NY3d 1096 [2021]; People v Planty, 155 AD3d 1130,1135 [2017], lv denied 30 NY3d 1118 [2018]).
Finally, the People concede that the duration of the order of protection was incorrect. Thatsaid, based upon the determination herein and so that any jail time credit to which defendant isentitled can be considered, the matter must be remitted for Supreme Court to recalculate theexpiration date for the order of protection (see People v Hodges, 66 AD3d 1228, 1233 [2009], lvdenied 13 NY3d 939 [2010]).
Egan Jr., J.P., Clark, Pritzker and Reynolds Fitzgerald, JJ., concur. Ordered that the judgmentis modified, on the law, by reversing defendant's conviction of coercion in the first degree undercount 6 of the indictment; said count dismissed, the sentence imposed thereon vacated, andmatter remitted to the Supreme Court for further proceedings not inconsistent with this Court'sdecision; and, as so modified, affirmed.