People v. ManigaultPeople v. Manigault
Defendant and the victim began dating and living together in April 2013. In November 2013, the victim reported an incident that occurred the previous night where she alleged, among other things, that defendant had raped her. As a result of the investigation of that and other instances, defendant was ultimately charged with criminal sexual act in the first degree, criminal sexual act in the third degree, assault in the third degree, unlawful imprisonment in the second degree, rape in the third degree and three counts of strangulation in the second degree. After defendant’s trial, the jury found him not guilty of criminal sexual act in the first degree and criminal sexual act in the third degree but guilty of the remaining charges. County Court sentenced defendant to four years in prison to be fol
Initially, we agree with defendant that, due to the fact that it was multiplicitous to either count 3 or count 4 of the indictment, defendant’s conviction for strangulation in the second degree under count 5 of the indictment cannot be sustained and is against the weight of the evidence.1 “As a general rule, . . . where a defendant, in an uninterrupted course of conduct directed at a single victim, violates a single provision of the Penal Law, he [or she] commits but a single crime” (People v Alonzo, 16 NY3d 267, 270 [2011]; accord People v Flanders, 25 NY3d 997, 1000 [2015]). Initially, the record evidence establishes two distinct episodes in which defendant strangled the victim, between which the victim left the home in an attempt to escape defendant’s abuse—an escape thwarted by defendant depriving the victim of her car keys. As the record readily establishes that these two strangulations did not occur in an uninterrupted course of conduct, we reject defendant’s contention that there was only evidence of one uninterrupted strangulation and that count 4 of the indictment was multiplicitous of count 3 of the indictment (see People v Garcia, 141 AD3d 861, 865 [2016], lv denied 28 NY3d 929 [2016]). Nonetheless, beyond the victim’s conclusory testimony that there was a third event of strangulation, the record does not contain any factual explanation of this event that would allow for a reasonable conclusion that it was not part of an uninterrupted course of conduct in regard to either count 3 or count 4 of the indictment. Accordingly, as there is insufficient evidence from which to conclude that defendant’s conviction on count 5 of the indictment was not part of an uninterrupted occurrence in regard to the conduct for which he was convicted in either counts 3 or 4 of the indictment (see generally People v Alonzo, 16 NY3d at 271), defendant’s conviction under count 5 of the indictment is against the weight of the evidence and therefore must be reversed and the count dismissed.
As to defendant’s remaining contention regarding the convictions for strangulation in the second degree, the victim’s testimony established that she was gasping for air, suffered
Defendant’s contention that the victim did not clearly express an unwillingness to engage in sexual intercourse with him is without merit. In regard to consent, “the proper inquiry for the factfinder is not whether a defendant actually perceives a lack of consent, but whether the victim, by words or actions, clearly expresses an unwillingness to engage in the sexual act in such a way that a neutral observer would have understood that the victim was not consenting” (People v Newton, 8 NY3d 460, 464 [2007]). Whether a person’s words or acts express a lack of consent must be considered under “all the circumstances” (
Finally, and as the People concede, the respective postrelease supervision periods imposed on the convictions for strangulation in the second degree, five years, are illegal. Strangulation in the second degree is a class D violent felony (see
Peters, P.J., Egan Jr., Mulvey and Aarons, JJ., concur.
Ordered that the judgment is modified, on the law and the facts, by (1) reversing defendant’s conviction of strangulation in the second degree under count 5 of the indictment and (2) vacating the periods of postrelease supervision imposed upon defendant’s convictions of strangulation in the second degree under counts 3 and 4 of the indictment; count 5 dismissed, the sentence imposed thereon vacated and matter remitted to the County Court of Albany County for resentencing of the periods of postrelease supervision on counts 3 and 4; and, as so modified, affirmed.