94 A.D.3d 1242
N.Y. App. Div.2012Background
- Defendant convicted of rape in the third degree, criminal sexual act in the third degree, and unlawfully dealing with a child in the third degree after a September 2009 jury trial.
- Victim and defendant met via Facebook in 2007; initial brief interaction ended, then she contacted him again when she was bored and single.
- Defendant picked up the victim, brought her to his apartment, drank wine, and allegedly engaged in oral, vaginal, and anal sex without consent while intoxicated.
- Victim testified she cried, pushed defendant away, and repeatedly said no; emergency room nurse noted she said stop, no, and was crying.
- The People charged multiple counts including forcible rape/CSAs; the jury acquitted on the forcible counts but convicted on the third-degree counts relevant here; sentence was concurrent one-year terms on each count.
- Defendant appealed asserting the convictions were against the weight of the evidence and challenged evidentiary rulings under CPL 60.42 and the Allen charge.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Weight of the evidence for the third-degree offenses | Romero framework; victim's testimony credible overall. | Testimony was inconsistent; conviction against weight of evidence. | Not weight-of-evidence; jury credibility determinations affirmed; convictions upheld. |
| Admissibility of victim’s sexual conduct with another at defendant’s apartment under CPL 60.42 | Evidence relevant to victim’s willingness to engage in sex with others. | Evidence should be admitted to show consent; otherwise admissible. | Court properly declined admission under interests of justice; no abuse of discretion. |
| Allen charge preservation and propriety | Challenge preserved for review. | Not preserved for review. | Not preserved; alternative holding that charge was balanced and proper if reviewed. |
Key Cases Cited
- People v. Romero, 7 NY3d 633 (2006) (weigh conflicting testimony; credibility issues for jury)
- People v. Shepherd, 83 AD3d 1298 (2010) (credibility determinations for jury; weight of evidence review)
- People v. Stearns, 72 AD3d 1214 (2010) (weight-of-the-evidence standard; credibility reviewed by appellate court)
- People v. Wagner, 72 AD3d 1196 (2010) (partial acceptance of testimony; reconciling inconsistent trial testimony)
- People v. Kuykendall, 43 AD3d 493 (2007) (jury may credit some testimony and reject other portions)
- People v. Bush, 14 AD3d 804 (2005) (credibility and weight arguments on appeal)
- People v. McLaurin, 27 AD3d 1117 (2006) (rape shield considerations and evidentiary rulings)
- People v. Grantier, 295 AD2d 988 (2002) (application of CPL 60.42 and exclusionary rulings)
- People v. Williams, 81 NY2d 303 (1993) (rape shield exceptions and admissibility framework)