101 A.D.2d 925 | N.Y. App. Div. | 1984
Appeals (1) from a judgment of the County Court of Albany County (Clyne, J.), rendered January 7, 1982, upon a verdict convicting defendant of the crimes of rape in the first degree and sodomy in the first degree, and (2) by permission, from an order of said court, entered September 30, 1982, which denied defendant’s motion pursuant to CPL 440.10 to vacate the judgment, without a hearing, f At about 5:00 p.m. on August 16, 1981, defendant took Patricia Briggs (whom he had known less than a week) to dinner at the Barnsider Restaurant in the Town of Colonie, Albany County. After dinner they returned to Briggs’ apartment where defendant gained entry in order to call his “Uncle Bill” to borrow a car to take Briggs to a movie. His telephone call, however, was unanswered. Defendant then grabbed Briggs, twisted her arm, threw her to the floor, threatened to kill her if she screamed, and, after locking the door, held a knife to her throat and ordered her to undress with him in the bathroom. He then raped and sodomized her in the bedroom. When the phone rang or a knock was made on the door, she was ordered at knife point not to answer. 11 After defendant fell asleep, Briggs struck him with a stereo speaker and stabbed him in the side with the knife, which Briggs took from between the bed mattresses where defendant had placed it. A struggle ensued at the time of the stabbing, and defendant regained control of the knife and ordered Briggs to telephone his “Uncle Bill”, inform him of the stabbing and request “Uncle Bill” to go next door and “get