People v. Auleta

• Decision Date: 17 March 2011
• Citation: 82 A.D.3d 1417,2011 N.Y. Slip Op. 01903,919 N.Y.S.2d 222
• Parties: The PEOPLE of the State of New York, Respondent,v.Francis AULETA, Appellant.
• Court: New York Supreme Court — Appellate Division

82 A.D.3d 1417
919 N.Y.S.2d 222
2011 N.Y. Slip Op. 01903

The PEOPLE of the State of New York, Respondent,
v.
Francis AULETA, Appellant.

Supreme Court, Appellate Division, Third Department, New York.

March 17, 2011.

[919 N.Y.S.2d 223]

Jonathan S. Fishbein, Delmar, for appellant.P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), for respondent.Before: MERCURE, J.P., SPAIN, ROSE, LAHTINEN and GARRY, JJ.MERCURE, J.P.

[82 A.D.3d 1417] Appeals (1) from a judgment of the County Court of Albany County (Rosen, J.), rendered December 3, 1998, upon a verdict convicting defendant of the crimes of rape in the first degree, sodomy in the first degree, criminal possession of a weapon in the second degree and criminal use of a firearm in the first degree (two counts), (2) by permission, from an order of said court (Herrick, J.), entered April 20, 2009, which denied defendant's motion pursuant to CPL 440.20 to set aside the sentence, without a hearing, and (3) by permission, from an order of said court, entered March 22, 2010, which denied defendant's[82 A.D.3d 1418] motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.

In July 1997, the 17–year–old victim reported to police that she had been raped at gunpoint by defendant in the basement of his restaurant in the City of Albany. The victim stated that she went to the restaurant for a job interview. While there,

[919 N.Y.S.2d 224]

defendant held a gun to her neck, bound her hands and neck with apron straps or rope, and forced her to engage in oral sodomy and sexual intercourse. The victim claimed that although defendant initially threatened to kill her, he ultimately let her leave after she promised both that she would not report the rape and that she would meet defendant later that evening.

Police later responded to the restaurant and defendant, who was then driving in his car, called 911 on his cell phone, and allegedly indicated that he had a gun and that he intended to either kill himself or turn himself in to the Albany police. Several Albany police officers in separate, marked vehicles pursued defendant in his car, ultimately apprehending him by force and recovering a loaded gun from the front seat of his car. Once in custody, defendant waived his rights and signed a statement confessing that he forced the victim to have sex with him at gunpoint. A search of defendant's restaurant revealed, among other things, rope and apron strings in the basement and a foam mattress in a dumpster.

Thereafter, defendant was charged in an indictment with rape in the first degree, sodomy in the first degree, criminal possession of a weapon in the second degree and two counts of criminal use of a firearm in the first degree. Following an initial mistrial, a jury convicted defendant as charged. County Court (Rosen, J.) denied defendant's motion to set aside the verdict, and sentenced him to 3 to 6 years on the criminal possession of a weapon conviction to run consecutively to concurrent terms of 12 1/2 to 25 years on the remaining counts. With the People's consent, defendant's motion pursuant to CPL 440.20 was granted, and his sentence was amended to provide that all terms would run concurrently. The court (Herrick, J.) thereafter denied defendant's additional motions pursuant to CPL 440.10 and 440.20. Defendant now appeals from the judgment of conviction and, by permission, from the orders denying his CPL 440.10 and 440.20 motions. We affirm.

Initially, we reject defendant's argument that County Court (Rosen, J.) erred in admitting, as “excited utterances,” statements made by the victim to two friends shortly after escaping from defendant's restaurant. “An out-of-court statement is properly admissible under the excited utterance exception when [82 A.D.3d 1419] made under the stress of excitement caused by an external event, and not the product of studied reflection and possible fabrication” ( People v. Johnson, 1 N.Y.3d 302, 306, 772 N.Y.S.2d 238, 804 N.E.2d 402 [2003]; see People v. Vasquez, 88 N.Y.2d 561, 579, 647 N.Y.S.2d 697, 670 N.E.2d 1328 [1996] ). In determining whether the statement was made prior to an opportunity to reflect or fabricate, “[t]he court must assess ‘not only the nature of the startling event and the amount of time which has elapsed between the occurrence and the statement, but also the activities of the declarant in the interim’ ” ( People v. Vasquez, 88 N.Y.2d at 579, 647 N.Y.S.2d 697, 670 N.E.2d 1328, quoting People v. Edwards, 47 N.Y.2d 493, 497, 419 N.Y.S.2d 45, 392 N.E.2d 1229 [1979]; see People v. Brown, 70 N.Y.2d 513, 518–519, 522 N.Y.S.2d 837, 517 N.E.2d 515 [1987] ). Here, as defendant asserts, the victim testified that she was able to form and execute an escape plan and, after escaping, drive 10 to 15 minutes in traffic to the home of Deborah Weisburgh and Joseph House, where she reported the rape. Nevertheless, Weisburgh and House testified that upon her arrival, the victim was hysterical, crying and shaking, could not walk up the stairs without stumbling, and collapsed in a fetal position on a bed. In response to Weisburgh's questions, the victim told her that

[919 N.Y.S.2d 225]

a man had held a gun to her head and raped her on a job interview. House then called...