People v. Blackman

• Decision Date: 22 December 2011
• Parties: The PEOPLE of the State of New York, Respondent, v. Devon BLACKMAN, Appellant.
• Court: New York Supreme Court — Appellate Division

2011 N.Y. Slip Op. 09210
90 A.D.3d 1304
935 N.Y.S.2d 181

The PEOPLE of the State of New York, Respondent,
v.
Devon BLACKMAN, Appellant.

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

Dec. 22, 2011.

[935 N.Y.S.2d 183]

G. Scott Walling, Queensbury, for appellant.

Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), for respondent.

Before: PETERS, J.P., ROSE, LAHTINEN, McCARTHY and GARRY, JJ.

GARRY, J.

[90 A.D.3d 1304] Appeals (1) from a judgment of the County Court of Schenectady County (Hoye, J.), rendered December 15, 2009, convicting defendant following a nonjury trial of the crimes of [90 A.D.3d 1305] predatory sexual assault (three counts), criminal sexual act in the first degree (two counts), rape in the first degree, assault in the first degree and burglary in the second degree, and (2) by permission, from an order of said court (Drago, J.), entered October 13, 2010, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.

In August 2008, the victim left a bar in the City of Schenectady, Schenectady County accompanied by a man later identified as defendant. The victim has limited memory of what transpired in the next few hours, but she testified that she recalled standing on a street corner arguing with a man, hitting him, and then him choking her so severely that she began to lose consciousness. She next remembered

[935 N.Y.S.2d 184]

standing with her back to the door of an unfamiliar apartment, feeling dazed and “very, very frightened.” Finally, she recalled sitting on a couch with a man who demanded oral sex.¹ The victim testified that she complied out of fear that if she did not, “he was going to hurt me more.” Some time later, the victim awoke alone in an unfamiliar apartment. Her face and body were bloody and bruised, and she felt severe pain in her face, vagina and anus. Upon leaving the apartment, she recognized that she was close to her own residence. Upon her arrival there, she told the babysitter who had been caring for her infant that she had been raped and beaten. The victim was hospitalized and treated for multiple injuries, including fractures of her jaw, the bone surrounding her eye socket and the bridge and spines of her nose, facial lacerations, a vaginal tear, severe anal pain, and contusions on her face, limbs and body, and a ligature mark on her neck. Police investigating a break-in at an apartment near the victim's home found blood, signs of struggle, and items belonging to her. The victim's memory loss prevented her from identifying her assailant, but forensic examination of DNA samples taken from her person and the apartment yielded a match with samples of defendant's DNA in a police database. Police interviewed defendant, who provided several inconsistent accounts before eventually stating that he met the victim at the bar on the night in question and later broke into an apartment, where he and the victim had consensual sex before falling asleep. He stated that, upon waking, he saw blood on the victim's face, and thought she had a nosebleed. He then left while she was sleeping.

Defendant was charged with three counts of predatory sexual [90 A.D.3d 1306] assault, two counts of criminal sexual assault in the first degree, two counts of assault in the first degree, and one count each of attempted murder in the second degree, rape in the first degree, and burglary in the second degree. After a bench trial, County Court (Hoye, J.) convicted him of all of these charges except attempted murder and one of the assault counts. Defendant was thereafter sentenced as a second felony offender to three concurrent prison terms of 25 years to life on the predatory sexual assault convictions, three consecutive 25–year terms for the rape and criminal sexual assault convictions, and two 15–year terms to run concurrently with the other sentences for the burglary and assault convictions. In addition, a period of five years of postrelease supervision was imposed as part of each sentence except those for predatory sexual assault. Thereafter, defendant moved pursuant to CPL 440.10 to vacate the judgment of conviction. County Court (Drago, J.) denied the motion without a hearing. Defendant appeals from the judgment of conviction and, by permission, from the denial of his CPL 440.10 motion.

Defendant first contends that the evidence was legally insufficient to support his convictions. We reject his claim that the evidence of forcible compulsion was insufficient to support the convictions for rape in the first degree ( see Penal Law § 130.35[1]; People v. Newkirk, 75 A.D.3d 853, 858, 906 N.Y.S.2d 133 [2010], lv. denied 16 N.Y.3d 834, 921 N.Y.S.2d 198, 946 N.E.2d 186 [2011] ) and criminal sexual act in the first degree ( see Penal Law § 130.50[1] ). To engage in forcible compulsion is “to compel by either ... use of physical force; or ... a threat, express or implied, which places [the victim] in fear of immediate death or physical injury” (

[935 N.Y.S.2d 185]

Penal Law § 130.00[8][a], [b]; see People v. Littebrant, 55 A.D.3d 1151, 1155, 867 N.Y.S.2d 550 [2008], lv. denied 12 N.Y.3d 818, 881 N.Y.S.2d 26, 908 N.E.2d 934 [2009] ). The existence of an implied threat is established by a “subjective inquiry into what a victim feared a defendant might have done if he or she did not comply” ( People v. Porter, 82 A.D.3d 1412, 1413, 918 N.Y.S.2d 670 [2011], lv. denied 16 N.Y.3d 898, 926 N.Y.S.2d 34, 949 N.E.2d 982 [2011]; see People v. Clairmont, 75 A.D.3d 920, 921, 906 N.Y.S.2d 369 [2010], lv. denied 15 N.Y.3d 919, 913 N.Y.S.2d 646, 939 N.E.2d 812 [2010] ). An implied threat of force was established here by the victim's memory of acceding to her assailant's sexual demand out of fear of a further attack ( see People v. Porter, 82 A.D.3d at 1414, 918 N.Y.S.2d 670; People v. Littebrant, 55 A.D.3d at 1155, 867 N.Y.S.2d 550), as well as the considerable difference in size and strength between defendant and the petite victim ( see People v. Clairmont, 75 A.D.3d at 921, 906 N.Y.S.2d 369; People v. Maggio, 70 A.D.3d 1258, 1258–1259, 896 N.Y.S.2d 220 [2010], lv. denied 14 N.Y.3d 889, 903 N.Y.S.2d 778, 929 N.E.2d 1013 [2010]; People v. Oglesby, 12 A.D.3d 857, 860, 787 N.Y.S.2d 401 [2004], lv. denied 5 N.Y.3d 792, 801 N.Y.S.2d 813, 835 N.E.2d 673 [2005] ). The medical evidence of the victim's extensive injuries, including those that were consistent with sexual assault, and her descriptions of her pain further established the use of physical [90 A.D.3d 1307] force ( see People v. Clairmont, 75 A.D.3d at 922–923, 906 N.Y.S.2d 369; People v. Brown, 39 A.D.3d 886, 888, 835 N.Y.S.2d 451 [2007], lv. denied 9 N.Y.3d 873, 842 N.Y.S.2d 785, 874 N.E.2d 752 [2007] ). Defendant was linked to the victim's injuries by the DNA evidence, in particular DNA found around the victim's vagina and anus ( see People v. Collins, 56 A.D.3d 809, 810, 866 N.Y.S.2d 450 [2008], lv. denied 11 N.Y.3d 923, 874 N.Y.S.2d 9, 902 N.E.2d 443 [2009]; People v. Jacobs, 37 A.D.3d 868, 869, 828 N.Y.S.2d 704 [2007], lv. denied 9 N.Y.3d 923, 844 N.Y.S.2d 178, 875 N.E.2d 897 [2007] ), as well as the testimony of a witness who saw defendant outside the bar, arguing with the victim and grabbing her wrists, and his own admission that he saw blood on her face after having oral and vaginal intercourse with her while the two were alone in the apartment. Viewing this evidence in the light most favorable to the People, we find a “valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached” ( People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987]; see People v. Maricevic, 52 A.D.3d 1043, 1044, 860 N.Y.S.2d 666 [2008], lv. denied 11 N.Y.3d 790, 866 N.Y.S.2d 617, 896 N.E.2d 103 [2008] ).

Defendant failed to preserve his claim that his convictions for predatory sexual assault and assault in the first degree were not supported by legally sufficient evidence that the victim suffered a serious physical injury ( see Penal Law § 10.00[10]; § 120.10[4]; § 130.95[1][a]; People v. Gray, 86 N.Y.2d 10, 20–21, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] ). Considering the severity of the victim's injuries—which included multiple facial fractures, required her to undergo two surgeries, and left her, more than a year after the attack, with a limited ability to open her mouth, scarring on her neck, and permanent nerve damage manifested by numbness on the left side of her face and drooping of that side of her mouth—no modification in the interest of justice is warranted ( see People v. Brabant, 61 A.D.3d 1014, 1015–1016, 876 N.Y.S.2d 536 [2009], lv. denied 12 N.Y.3d 851, 881 N.Y.S.2d 663, 909 N.E.2d 586 [2009]; People v. Khuong Dinh Pham, 31 A.D.3d 962, 965–966, 818 N.Y.S.2d 674 [2006]; compare

[935 N.Y.S.2d 186]

People v. Sleasman, 24 A.D.3d 1041, 1042–1043, 805 N.Y.S.2d 736 [2005] ). Further, in view of our conclusion that the evidence was sufficient to establish forcible compulsion, there was also legally sufficient evidence that the victim was injured during the commission of the underlying sex crimes ( see Penal Law § 120.10[4]; § 130.95[1][a] ).

The evidence was also legally sufficient to support the conviction for burglary in the second degree ( see Penal Law § 140.25[1] [b] ). Defendant's intent to commit a crime when he entered the apartment “ ‘may be inferred from the circumstances of [his] unlawful entry, unexplained presence on the premises, and actions and statements when confronted by police or the property owner’ ” ( People v. Vanbergen, 68 A.D.3d 1249, 1250, 890 N.Y.S.2d 706 [2009], lv. denied 14 N.Y.3d 806, 899 N.Y.S.2d 141, 925 N.E.2d 945 [2010], quoting People v. Ostrander, 46 A.D.3d 1217, 1218, 847 N.Y.S.2d 791 [2007] ). Defendant admitted to police that he [90 A.D.3d 1308] broke into the apartment, and his claim that he did so only after the victim told him that she lived there was belied by, among...