People v. CasePeople v. Case
Appeal from a judgment of the Cattaraugus County Court (Ronald D. Ploetz, J.), rendered March 16, 2015. The judgment convicted defendant, upon a jury verdict, of rape in the first degree, assault in the second degree, strangulation in the second degree and unlawful imprisonment in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously reversed on the law and as a matter of discretion in the interest of justice, a new trial is granted on the first and sixth counts of the indictment, the fourth count is dismissed, and the fifth count is dismissed without prejudice to the People to re-present any appropriate charges under that count to another grand jury.
We agree with defendant that the conviction of felony assault and strangulation is not supported by legally sufficient evidence with respect to the physical injury element (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). The evidence submitted by the People, i.e., that the victim sustained minor pain, a one-centimeter bruise on her arm, and a swollen neck, is insufficient to establish either physical impairment or substantial pain (see
Contrary to defendant‘s further contention, viewing the evidence in the light most favorable to the People (see People v Contes, 60 NY2d 620, 621 [1983]), we conclude that the evidence is legally sufficient to support the conviction of rape and unlawful imprisonment (see generally Bleakley, 69 NY2d at 495). Furthermore, viewing the evidence in light of the elements of the crimes of rape in the first degree and unlawful imprisonment as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict with respect to those crimes is not against the weight of the evidence (see generally Bleakley, 69 NY2d at 495).
Defendant failed to preserve for our review his contention that the conviction of unlawful imprisonment must be dismissed based on the merger doctrine (see People v Hanley, 20 NY3d 601, 605-606 [2013]). In any event, that contention is without merit (see People v Smith, 47 NY2d 83, 87 [1979]).
Defendant contends that County Court erred in precluding him from introducing evidence that the victim had previously said, in effect, that she would accuse defendant of rape in order to obtain a divorce from him. Defendant contends that the court further erred in striking the testimony of a witness regarding that statement. Any error in precluding that evidence and striking that testimony is harmless because “the precluded testimony was essentially cumulative of other evidence presented at trial . . . , and . . . defendant was provided a meaningful opportunity to present a complete defense” (People v Ramsey, 59 AD3d 1046, 1048 [2009], lv denied 12 NY3d 858 [2009] [internal quotation marks omitted]; see People v Davis, 111 AD3d 1302, 1304 [2013], lv denied 22 NY3d 1137 [2014]; see also People v Herring, 225 AD2d 1065, 1066 [1996], lv denied 88 NY2d 937 [1996]). Defendant‘s contention that he was denied effective assistance of counsel by his attorney‘s failure to object or seek other corrective action with respect to those alleged errors “is raised for the first time in his reply brief and
We reject defendant‘s contention that the court erred in denying his motion to discharge a sworn juror. During the trial, that juror indicated to a court officer that a courtroom spectator seated near the defense table had befriended the juror on social media, and was attempting to contact the juror. The juror concluded that the spectator was attempting to contact him in order to persuade him to acquit defendant. In order to discharge a sworn juror, the court “must be convinced that the juror‘s knowledge will prevent [him or] her from rendering an impartial verdict” (People v Buford, 69 NY2d 290, 299 [1987]). “On this record, we are unable to conclude that the court could have been ‘convinced’ . . . , based on any unequivocal responses of the juror, that the juror was ‘grossly unqualified to serve in the case‘” (People v Telehany, 302 AD2d 927, 928 [2003], quoting
We agree with defendant, however, that the prosecutor engaged in misconduct on several occasions, and we reach defendant‘s unpreserved contention as a matter of discretion in the interest of justice (see
Furthermore, “[i]n light of the foregoing, we agree with defendant‘s related contention that he was denied effective assistance of counsel owing to defense counsel‘s failure to object to
Contrary to defendant‘s further contention, however, the court did not err in refusing to suppress his statements to the police. With respect to defendant‘s contention that he was too intoxicated to waive his rights, the record of the suppression hearing does not establish that, at the time he waived his Miranda rights, he was intoxicated “to the degree of mania, or of being unable to understand the meaning of his statements” (People v Schompert, 19 NY2d 300, 305 [1967], cert denied 389 US 874 [1967]; see People v Beasley, 147 AD3d 1549, 1550 [2017]; People v Peterkin, 89 AD3d 1455, 1455 [2011], lv denied 18 NY3d 885 [2012]). With respect to defendant‘s further contention that the interrogating officers used leading questions that prompted him to waive his rights and undermined the voluntariness of the confession, “it cannot be said that the interrogation was fundamentally unfair or that it induced defendant falsely to incriminate himself” (People v Salgado, 130 AD2d 960, 961 [1987], lv denied 70 NY2d 754 [1987]; see generally People v Gutierrez, 96 AD3d 1455, 1455 [2012], lv denied 19 NY3d 997 [2012]). Finally, with respect to defendant‘s contention that his statements were involuntary because he was questioned over a two-hour period, it is axiomatic that the length of the interrogation period “does not, by itself, render the statement[s] involuntary” (People v Weeks, 15 AD3d 845, 847 [2005], lv denied 4 NY3d 892 [2005]; see People v Clark, 139 AD3d 1368, 1369 [2016], lv denied 28 NY3d 928 [2016]). Here, viewing “the totality of the circumstances surrounding the interrogation” (People v Knapp, 124 AD3d 36, 41 [2014] [internal quotation marks omitted]), we conclude that “[t]he record of the suppression hearing supports the court‘s determination that defendant knowingly, voluntarily and intelligently waived his Miranda rights before making the statement[s]”
Defendant‘s further contentions are academic in light of our determination. Present—Whalen, P.J., Smith, Centra, Troutman and Scudder, JJ.