People v. Beliard

• Decision Date: 13 December 2012
• Parties: The PEOPLE of the State of New York, Respondent, v. Ygord BELIARD, Appellant.
• Court: New York Supreme Court — Appellate Division

101 A.D.3d 1236
956 N.Y.S.2d 234
2012 N.Y. Slip Op. 08571

The PEOPLE of the State of New York, Respondent,
v.
Ygord BELIARD, Appellant.

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

Dec. 13, 2012.

[956 N.Y.S.2d 236]

Eugene P. Grimmick, Troy, for appellant.

Richard J. McNally Jr., District Attorney, Troy (Gordon W. Eddy of counsel), for respondent.

BEFORE: PETERS, P.J., ROSE, SPAIN, McCARTHY and GARRY, JJ.

GARRY, J.

[101 A.D.3d 1236]Appeal from a judgment of the County Court of Rensselaer County (McGrath, J.), rendered June 24, 2004, upon a verdict convicting defendant of the crimes of rape in the second degree, attempted sodomy in the second degree and endangering the welfare of a child.

In December 2002, a 14–year–old girl (hereinafter the victim) and a 12–year–old girl (hereinafter the younger victim) reported that two men had sexually assaulted them in an apartment in the City of Troy, Rensselaer County. Codefendant Edmond Joseph was indicted in March 2003 for offenses pertaining to the younger victim and, in the same indictment, was jointly charged with Steve Val for sexual offenses arising from a different incident. Defendant was later separately indicted for various crimes pertaining to the assault on the victim. The People thereafter successfully moved to sever the charges against Joseph pertaining to the younger victim from the March 2003 [101 A.D.3d 1237]indictment and consolidate them with the indictment against defendant.

After conducting a Wade hearing, County Court ruled, among other things, that the victim's identification of defendant as her attacker in a photo array was admissible. Following a joint jury trial of defendant and Joseph, defendant was acquitted of all charges alleging use of forcible compulsion, and convicted of each of the charges arising from the victim's age—that is, one count each of rape in the second degree, attempted sodomy in the second degree and endangering the welfare of a child. County Court imposed an aggregate prison term of 3 2/3 to 11 years. Defendant appeals.

Initially, defendant argues that the charges against him were improperly consolidated with those against Joseph as they involved two different victims and thus did not constitute “the same criminal transaction” (CPL 200.40[1][c]; seeCPL 40.10[2]; 200.40[2] ). In this regard, the People contended that defendant and Joseph met the two victims on the street and lured them together to Joseph's apartment,

[956 N.Y.S.2d 237]

where, in the same place and at the same time, defendant assaulted the victim while Joseph assaulted the younger victim. The accounts given by the victims of these events and the aftermath were largely identical. Even if defendant—whose trial counsel conceded that the charges were “technically joinable” while opposing consolidation on other grounds—had preserved this claim, we would have found that the alleged conduct of defendant and Joseph was “so closely related and connected in point of time and circumstance of commission as to constitute” the same criminal transaction for consolidation purposes (CPL 40.10[2]; see People v. Vogel, 216 A.D.2d 857, 857, 629 N.Y.S.2d 157 [1995],lv. denied86 N.Y.2d 804, 632 N.Y.S.2d 518, 656 N.E.2d 617 [1995];People v. Ramjit, 203 A.D.2d 488, 490, 612 N.Y.S.2d 600 [1994],lv. denied84 N.Y.2d 831, 617 N.Y.S.2d 151, 641 N.E.2d 172 [1994] ).

Defendant further claims that the consolidation violated his right to confront witnesses as enunciated in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 [2004] and Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 [1968] in that a redacted statement made by Joseph to police was admitted at the joint trial, where Joseph did not testify. This argument is unpreserved, as it was neither raised in opposition to the application to consolidate nor in objecting to the introduction of Joseph's statement ( see People v. Jenkins, 93 A.D.3d 861, 861, 940 N.Y.S.2d 874 [2012],lv. denied19 N.Y.3d 962, 950 N.Y.S.2d 114, 973 N.E.2d 212 [2012];People v. Serrano, 256 A.D.2d 175, 176, 684 N.Y.S.2d 1 [1998],lv. denied93 N.Y.2d 878, 689 N.Y.S.2d 440, 711 N.E.2d 654 [1999] ). In any event, no modification is warranted as there was no Crawford or Bruton violation; Joseph's statement named Val as the second man involved in the crimes, did not mention defendant[101 A.D.3d 1238]and implicated him only when linked with other evidence at trial ( see People v. Pagan, 87 A.D.3d 1181, 1183–1185, 929 N.Y.S.2d 332 [2011],lv. denied18 N.Y.3d 885, 939 N.Y.S.2d 755, 963 N.E.2d 132 [2012];compare People v. Hardy, 4 N.Y.3d 192, 198–199, 791 N.Y.S.2d 513, 824 N.E.2d 953 [2005];People v. Pinto, 56 A.D.3d 956, 958, 868 N.Y.S.2d 338 [2008] ).

Next, we reject defendant's contention that County Court abused its discretion during the Wade hearing by preventing his counsel from inquiring into the victim's...