People v. Battease

• Decision Date: 17 June 2010
• Citation: 74 A.D.3d 1571,904 N.Y.S.2d 241
• Parties: The PEOPLE of the State of New York, Respondent, v. Phillip P. BATTEASE, Appellant.
• Court: New York Supreme Court — Appellate Division

904 N.Y.S.2d 241 74 A.D.3d 1571 The PEOPLE of the State of New York, Respondent, v. Phillip P. BATTEASE, Appellant. Supreme Court, Appellate Division, Third Department, New York. June 17, 2010.

Bruce E. Knoll, Albany, for appellant.

Kevin C. Kortright, District Attorney, Fort Edward (Andrew J. Proler of counsel), for respondent.

Before CARDONA, P.J., MERCURE, LAHTINEN, MALONE JR. and EGAN JR., JJ.

LAHTINEN, J.

Appeals (1) from a judgment of the County Court of Washington County (McKeighan, J.), rendered January 23, 2008, upon a verdict convicting defendant of the crimes of criminal sale of a controlled substance in the fifth degree, incest in the third degree, rape in the third degree, criminal sexual act in the third degree and coercion in the first degree, and (2) by permission, from an order of said court, entered June 3, 2008, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.

Defendant and the 22-year-old victim (a person related to defendant under Penal Law § 255.25) resided together and engaged in sexual activity during part of the months of March and April 2007. After the victim was released from a heroin detoxification program in mid-March 2007, defendant allegedly sold and supplied to her, in exchange for sex, the prescription drug Avinza, a morphine sulfate. In mid-April 2007, the victim went to police and reported that defendant had been providing Avinza to her, had coerced her to engage in sex, and had made a video of some of their sexual activity. She stated to police that she had sex with him because he had threatened that, if she did not, he would cause her to lose custody of her young child by telling the child's father that she was on drugs. She also statedthat sometimes he forced her to have sex after she told him no.

Upon questioning by police, defendant admitted his sexual activity with the victim, which he insisted was consensual, and acknowledged that he had a video recording of some of their sexual activity. He claimed that he had made the video to show the consensual nature of the sex after the victim had said to him on one occasion that she might accuse him of rape. He wascharged in a six-count indictment with criminal sale of a controlled substance in the fifth degree, incest in the third degree, rape in the third degree, criminal sexual act in the third degree, rape in the first degree and coercion in the first degree. A jury acquitted him of the most serious charge, rape in the first degree, but found him guilty of the remaining five counts. County Court sentenced him, as a persistent felony offender, to five concurrent terms of 20 years to life in prison. His subsequent CPL 440.10 motion was denied. Defendant now appeals from the judgment of conviction and, by permission, from the denial of his CPL 440.10 motion.

We consider first defendant's argument that the verdict was not supported by legally sufficient evidence. This argument has merit as to counts 3 and 4, and, as to such counts, defendant preserved the issue for our review with a specific motion to dismiss asserting the deficiencies now advanced on appeal ( see People v. Roberts, 63 A.D.3d 1294, 1296, 881 N.Y.S.2d 520 [2009]; People v. Lozada, 35 A.D.3d 969, 969-970, 824 N.Y.S.2d 816 [2006], lv. denied 8 N.Y.3d 947, 836 N.Y.S.2d 558, 868 N.E.2d 241 [2007] ). Count 3 charged rape in the third degree based upon sexual intercourse when the victim was allegedly incapable of consent because she was under the influence of a controlled substance ( see Penal Law § 130.25[1] ) and, similarly, count 4 charged criminal sexual act in the third degree for oral sex when the victim was allegedly incapable of consent because she was under the influence of a controlled substance ( see Penal Law § 130.40[1] ). The grounds for establishing that a person is incapable of consent are set forth in Penal Law § 130.05(3) and the current case was prosecuted on the theory that the victim was "physically helpless" (Penal Law § 130.05[3][d] ).¹ A person is physically helpless when he or she "is unconscious or for any other reason is physically unable to communicate unwillingness to an act" ( Penal Law § 130.00[7]; see People v. Cecunjanin, 67 A.D.3d 1072, 1074, 889 N.Y.S.2d 691 [2009], lv. granted 14 N.Y.3d 799, 899 N.Y.S.2d 133, 925 N.E.2d 937 [2010] [extensive evidence of victim's high level of inebriation including blood alcohol content of .267% and lifeless appearance]; People v. Williams, 40 A.D.3d 1364, 1366, 837 N.Y.S.2d 384 [2007], lv. denied 9 N.Y.3d 927, 844 N.Y.S.2d 182, 875 N.E.2d 901 [2007] [victim in drug and alcohol induced sleep when intercourse occurred]; People v. DeCicco, 38 A.D.3d 937, 937, 830 N.Y.S.2d 837 [2007], lv. denied 8 N.Y.3d 983, 838 N.Y.S.2d 487, 869 N.E.2d 663 [2007] [the defendant's sodomizing of victim was in progress when victim awoke from sleep]; People v. Perkins, 27 A.D.3d 890, 892, 810 N.Y.S.2d 596 [2006], lv. denied6 N.Y.3d 897, 817 N.Y.S.2d 632, 850 N.E.2d 679 [2006] [victim blacked out from intoxication]; but see People v. Chapman, 54 A.D.3d 507, 509-510, 862 N.Y.S.2d 660 [2008] [legally insufficient evidence of beingphysically helpless]; People v. Conto, 218 A.D.2d 665, 666, 630 N.Y.S.2d 542 [1995], lv. denied 87 N.Y.2d 845, 638 N.Y.S.2d 603, 661 N.E.2d 1384 [1995] [proof did not establish that the victim was either unconscious or physically unable to communicate unwillingness to engage in sex] ).

Here, the victim testified on direct examination (consistent with her statement to police) that she had sex with defendant because of his threats to expose her drug use and cause her to lose her child. While she described taking drugs and being "high," she never indicated that sex occurred while she was unconscious, awaking from sleep, coming out of unconsciousness, or when she was so high as to be unable to communicate. In fact, to the contrary, she acknowledged telling defendant that she did not want to have sex with him, but she relented out of fear for her child. Although she claimed to have been "fading in and out of consciousness" while at defendant's house, this condition was not tied to a specific time period and, importantly, she did not testify that the alleged sex occurred when she was in such condition. The video does not show her unconscious or unable to communicate during the segment depicting sexual conduct of the nature charged in the indictment. In an effective aspect of cross-examination, the extent of the victim's drug use during the relevant time was significantly minimized. She reiterated during cross-examination that she had sex with defendant because she feared his threats to reveal information that would result in her losing custody of her child. The victim's drug use undoubtedly clouded her judgment, but, even when viewed in the light most favorable to the prosecution, the record does not establish that sexual intercourse or oral sex occurred while the victim was either unconscious or physically unable to communicate.

Defendant's other arguments regarding counts 3 and 4-including that the indictment had insufficient factual allegations and was duplicitous-are academic. These arguments were not preserved as to the remaining three counts ( see People v. Anderson, 290 A.D.2d 658, 658, 736 N.Y.S.2d 720 [2002], lv. denied 97 N.Y.2d 750, 742 N.Y.S.2d 610, 769 N.E.2d 356 [2002]; People v. Fiacco, 172 A.D.2d 994, 996, 569 N.Y.S.2d 219 [1991], lv. denied 78 N.Y.2d 965, 574 N.Y.S.2d 945, 580 N.E.2d 417 [1991] ), and the record reveals no reason to exercise our interest of justice jurisdiction with regard to these issues ( see People v. Mathis, 278 A.D.2d 803, 803, 719 N.Y.S.2d 419 [2000], lv. denied 96 N.Y.2d 785, 725 N.Y.S.2d 650, 749 N.E.2d 219 [2001] ).

Contrary to defendant's contention, the remaining three counts of which he was convicted are supported by legally sufficientevidence. As for defendant's weight of the evidence argument regarding those counts, we consider, first, whether a different verdict would not have been unreasonable and, if so, we then "must, like the trier of fact below, weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony" ( People v. Romero, 7 N.Y.3d 633, 643, 826 N.Y.S.2d 163, 859 N.E.2d 902 [2006] [internal quotation marks and citations omitted] ). A different verdict on count 2, the crime of incest in the third degree, would have been unreasonable in light of the overwhelming evidence, including the video made by defendant together with defendant's statement acknowledging sex with the victim (and their familial relationship) as well as the victim's testimony regarding their familial relationship and sexual activity ( see People v. Kirton, 36 A.D.3d 1011, 1013-1014, 827 N.Y.S.2d 352 [2007], lv. denied 8 N.Y.3d 947, 836 N.Y.S.2d 557, 868 N.E.2d 240 [2007] ). Counts 1 (criminal sale of a controlled substance in the fifth degree) and 6 (coercion in the first degree) could have reasonably resulted in acquittal. Those convictions turn, at least in part, on the credibility of the victim's testimony. We accord deference to the jury's assessment of her credibility ( see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ) and, upon weighing and considering the evidence as to such counts, we are unpersuaded by defendant's weight of the evidence argument.

Next, we consider defendant's contention that he was denied the effective assistance of counsel. "So long as the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation, the constitutional requirement will have been met" ( People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981]; see People v. McDaniel, 13 N.Y.3d 751, 752, 886 N.Y.S.2d 88, 914 N.E.2d 1005 [2009] ). " '[C]ounsel's efforts should not...