People v. Blond

• Decision Date: 14 June 2012
• Citation: 946 N.Y.S.2d 663,96 A.D.3d 1149,2012 N.Y. Slip Op. 04787
• Parties: The PEOPLE of the State of New York, Respondent, v. Mark BLOND Jr., Appellant.
• Court: New York Supreme Court — Appellate Division

96 A.D.3d 1149

946 N.Y.S.2d 663

2012 N.Y. Slip Op. 04787

The PEOPLE of the State of New York, Respondent,

v.Mark BLOND Jr., Appellant.

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

June 14, 2012.

Terry D. Horner, Poughkeepsie, for appellant, and appellant pro se.

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

Before: ROSE, J.P., MALONE JR., STEIN, GARRY and EGAN JR., JJ.

ROSE, J.P.

Appeals (1) from a judgment of the Supreme Court (R. Sise, J.), rendered July 31, 2009 in Schenectady County, upon a verdict convicting defendant of the crimes of rape in the first degree, rape in the third degree, criminal sexual act in the third degree, sexual abuse in the third degree, attempted assault in the second degree, endangering the welfare of a child, criminal mischief in the third degree and criminal mischief in the fourth degree, and (2) by permission, from an order of the County Court of Schenectady County (Drago, J.), entered August 31, 2010, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.

Defendant was indicted on 10 counts stemming from his sexual abuse and rape of a 15–year–old victim, his attempted assault with a brick on his wife, who was the victim's aunt, and property damage he caused to his wife's vehicle when he repeatedly drove his own vehicle into it. When he was arrested and taken into custody, he also caused property damage to a police vehicle by shattering its window in a violent rage. Following a jury trial, defendant was convicted of rape in the first degree, rape in the third degree, criminal sexual act in the third degree, sexual abuse in the third degree, attempted assault in the second degree, endangering the welfare of a child, criminal mischief in the third degree and criminal mischief in the fourth degree. Supreme Court (R. Sise, J.) sentenced defendant to an aggregate prison term of 22 2/3 years followed by 20 years of postrelease supervision. Defendant's subsequent motion to vacate the judgment of conviction based on, among other things, ineffective assistance of counsel, was denied by County Court (Drago, J.) without a hearing. Defendant appeals the judgment of conviction and, with this Court's permission, the order denying his postjudgment motion.

Prior to trial, Supreme Court held a Molineux/Ventimiglia hearing and determined that the People would be allowed to offer evidence of prior domestic violence and abusive behavior by defendant for the purposes of establishing the element of forcible compulsion, providing necessary background information on the nature of the relationship and placing the charged conduct in context ( see People v. Leeson, 12 N.Y.3d 823, 826–827, 880 N.Y.S.2d 895, 908 N.E.2d 885 [2009];People v. Shofkom, 63 A.D.3d 1286, 1287–1288, 880 N.Y.S.2d 758 [2009],lv. denied13 N.Y.3d 799, 887 N.Y.S.2d 549, 916 N.E.2d 444 [2009],appeal dismissed13 N.Y.3d 933, 895 N.Y.S.2d 310, 922 N.E.2d 898 [2010];People v. Watson, 281 A.D.2d 691, 694, 721 N.Y.S.2d 700 [2001],lv. denied96 N.Y.2d 925, 732 N.Y.S.2d 643, 758 N.E.2d 669 [2001] ). Defendant concedes that there was a proper nonpropensity purpose for the admission of the evidence, but he argues that the probative value of these prior bad acts was outweighed by their prejudicial nature. We cannot agree. Supreme Court balanced the probative value and prejudicial nature of the evidence by limiting it to specific acts of violence that were witnessed by the victim and occurred after she began residing with defendant and his wife. The evidence has substantial probative value and provided necessary background information regarding the victim's fear of defendant and resultingunwillingness to tell anyone about the sexual abuse until after he was in police custody as a result of his most recent violent altercation with his wife ( see People v. Cass, 18 N.Y.3d 553, 563, 942 N.Y.S.2d 416, 965 N.E.2d 918 [2012];People v. Poquee, 9 A.D.3d 781, 782, 780 N.Y.S.2d 247 [2004],lv. denied3 N.Y.3d 741, 786 N.Y.S.2d 821, 820 N.E.2d 300 [2004];People v. Tarver, 2 A.D.3d 968, 969, 768 N.Y.S.2d 391 [2003] ). As contemporaneous limiting instructions on the use of such evidence were given twice during the trial, as well as in the final jury charge, any error in failing to give the instructions a third time after the wife's testimony—a failure that was not called to the court's attention by counsel—is harmless ( see People v. Burnell, 89 A.D.3d 1118, 1121, 931 N.Y.S.2d 776 [2011],lv. denied18 N.Y.3d 922, 942 N.Y.S.2d 461, 965 N.E.2d 963 [2012] ).

We next turn to defendant's allegations that the People failed to establish forcible compulsion with respect to the charge of rape in the first degree, that the verdicts were contrary to the physical evidence and that the victim's testimony was incredible as a matter of law. In evaluating the legal sufficiency of the evidence, we view it in a light most favorable to the People and will not disturb a verdict as long as there is a “valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury” ( People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987];see People v. Houghtaling, 79 A.D.3d 1155, 1156–1157, 912 N.Y.S.2d 155 [2010],lv. denied17 N.Y.3d 806, 929 N.Y.S.2d 566, 953 N.E.2d 804 [2011] ). As relevant here, forcible compulsion includes “a threat, express or implied, which places a person in fear of ... physical injury to ... herself or another person” (Penal Law § 130.00[8] [b] ). In determining whether an implied threat existed, the jury could consider the victim's age relative to that of defendant, the relationship between them and the victim's fear of what defendant might have done if she did not comply ( see People v. Fulwood, 86 A.D.3d 809, 810–811, 927 N.Y.S.2d 246 [2011],lv. denied17 N.Y.3d 952, 936 N.Y.S.2d 78, 959 N.E.2d 1027 [2011];People v. Hemingway, 85 A.D.3d 1299, 1301, 925 N.Y.S.2d 677 [2011] ).

The People's evidence established that the victim had witnessed numerous instances of violence by defendant against his wife since she had moved in with the couple in October 2007. During the early morning hours of May 2, 2008, when the victim was 15 years old, the 29–year–old defendant demanded sex and, when she said no, he pulled her pants down, maneuvered her to the floor and held her there while he had intercourse with her. The victim testified that she was afraid to cry out for fear that it would only lead to more physical violence by defendant. The victim's testimony regarding a number of sexually abusive encounters with defendant during the relatively short time frame in which she resided in his home, her fear of defendant, his use of physical force to hold her down, as well as the atmosphere of physical violence and intimidation she had witnessed were sufficient to establish the element of forcible compulsion ( see People v. Coleman, 42 N.Y.2d 500, 505–506, 399 N.Y.S.2d 185, 369 N.E.2d 742 [1977];People v. Fulwood, 86 A.D.3d at 810–811, 927 N.Y.S.2d 246;People v. Porter, 82 A.D.3d 1412, 1414, 918 N.Y.S.2d 670 [2011],lv. denied16 N.Y.3d 898, 926 N.Y.S.2d 34, 949 N.E.2d 982 [2011] ).

A physical examination of the victim performed a few days after the rape revealed recent injuries to her hymen and irritation consistent with the reported sexual activity. The evidence also showed that a pair of the victim's jeans—which had defendant's semen on them—were recovered by the police during a search of defendant's home. Defendant points to no inconsistencies or other aspects of the victim's testimony that would render it incredible as a matter of law ( see People v. Galloway, 93 A.D.3d 1069, 1071–1072, 940 N.Y.S.2d 699 [2012];People v. Shofkom, 63 A.D.3d at 1287, 880 N.Y.S.2d 758). In short, our review of the record convinces us that the evidence was legally sufficient to satisfy each element of every crime for which defendant was convicted. Furthermore, upon our independent review of the evidence in a neutral light, with due regard to the jury's credibility determinations ( see People v. Wright, 81 A.D.3d 1161, 1163, 918 N.Y.S.2d 598 [2011],lv. denied17 N.Y.3d 803, 929 N.Y.S.2d 112, 952 N.E.2d 1107 [2011] ), we find that the verdicts are not against the weight of the evidence ( see People v. Hemingway, 85 A.D.3d at 1301, 925 N.Y.S.2d 677;People v. Battease, 74 A.D.3d 1571, 1575, 904 N.Y.S.2d 241 [2010],lv. denied15 N.Y.3d 849, 909 N.Y.S.2d 26, 935 N.E.2d 818 [2010];People v. Shofkom, 63 A.D.3d at 1287, 880 N.Y.S.2d 758).

Defendant also contends that Supreme Court improperly precluded him from calling three social workers to testify that they had conducted a statement validity analysis test of the victim for use in Family Court, where such testimony is authorized if it tends to support the reliability of a child victim's out-of-court statement of abuse or neglect ( seeFamily Ct. Act § 1046[a][vi] ). Defendant concedes that such opinion evidence cannot be used in a criminal proceeding by the People during their case-in-chief ( see People v. Zurak, 168 A.D.2d 196, 199, 571 N.Y.S.2d 577 [1991],lv. denied79 N.Y.2d 834, 580 N.Y.S.2d 214, 588 N.E.2d 112 [1991],cert. denied504 U.S. 941, 112 S.Ct. 2276, 119 L.Ed.2d 202 [1992] ), but argues that it should be admissible for purposes of impeachment where, as here, such validation testing fails to corroborate the victim's claims. We are not persuaded, however, as there is no corresponding statutory authority for the admission of such evidence in a criminal proceeding. Moreover, defendant was otherwise fully able to attack the victim's credibility through cross-examination based on her alleged bias in favor of the wife and her failure to report her accusations earlier.

Defendant also argues that Supreme Court should have conducted an inquiry of a juror who appeared to be sleeping at one point during the trial, yet he did not make this request of ...