People v. Bombard

• Decision Date: 21 April 1994
• Citation: 610 N.Y.S.2d 965,203 A.D.2d 711
• Parties: The PEOPLE of the State of New York, Respondent, v. Marvin O. BOMBARD, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 965

610 N.Y.S.2d 965

203 A.D.2d 711

The PEOPLE of the State of New York, Respondent, v. Marvin O. BOMBARD, Appellant.

Supreme Court, Appellate Division Third Department.

April 21, 1994.

Livingston L. Hatch, Keeseville, for appellant.

Penelope D. Clute, Dist. Atty., Plattsburgh, for respondent.

Before CARDONA, P.J., and MERCURE, WHITE, CASEY and WEISS, JJ.

CASEY, Justice.

Appeals (1) from a judgment of the County Court of Clinton County (Lewis, J.), rendered March 16, 1992, upon a verdict convicting defendant of the crimes of rape in the first degree, sodomy in the first degree and endangering the welfare of a child, and (2) by permission, from that part of an order of said court, entered November 16, 1992, which denied defendant's motion pursuant to CPL 440.10 and 440.20 to vacate the judgment of conviction and to set aside the sentence following his conviction, without a hearing.

The crimes of which defendant stands convicted were committed after the victim, who was acquainted with defendant, agreed to give defendant a ride which he had requested. The victim testified how defendant directed her to drive to various houses and she was unaware of why defendant was doing this. Her infant daughter was sleeping in the back seat of the car at the time. Defendant claims that the stops were for the purpose of purchasing marihuana and that it was the victim who so requested. It was during this trip, when the car was in an isolated area, that defendant allegedly pulled the emergency brake on three separate occasions and forcibly committed the crimes of which he stands convicted. The baby was crying in the back seat during the incidents.

Defendant was charged in seven separate counts with crimes involving forcible sex on the victim and for endangering the welfare of the child. Defendant was convicted of three of the crimes charged and sentenced as a second felony offender to two terms of imprisonment of 7 1/2 to 15 years for the convictions of rape in the first degree and sodomy in the first degree, those sentences to run consecutively to one another, and also to a concurrent term of one year for his conviction of endangering the welfare of the child. Defendant appeals from the judgment.

After sentencing, defendant brought a CPL article 440 motion, contending that the prior conviction should not have been counted against him because he was a youthful offender at the time of the prior conviction. This relief was denied, and defendant was granted permission to appeal from the order.

Initially, we note that the testimony offered by the victim and supported by medical evidence was legally sufficient to support defendant's conviction of rape in the first degree and sodomy in the first degree and the convictions were not against the weight of the evidence (see, People v. Murphy, 188 A.D.2d 742, 743, 591 N.Y.S.2d 860, lv. denied 81 N.Y.2d 890, 597 N.Y.S.2d 951, 613 N.E.2d 983). We also find no basis in the record for defendant's claim that he was prejudiced by a conflict of interest because the law firm of the District Attorney's husband represented clients who were opposed to defendant's interests (see, Matter of Schumer v. Holtzman, 60 N.Y.2d 46, 55, 467 N.Y.S.2d 182, 454 N.E.2d 522). Furthermore, this contention was not appropriately preserved for appellate review (see, People v. Krom, 91 A.D.2d 39, 47, 458 N.Y.S.2d 693, aff'd 61 N.Y.2d 187, 473 N.Y.S.2d 139, 461 N.E.2d 276).

Defendant also argues that the jury verdict was inconsistent or compromised because defendant was not convicted of certain crimes that required the element of forcible compulsion but was convicted of other crimes that required proof of forcible compulsion. Reviewing County Court's charge, as required by People v. Tucker, 55 N.Y.2d 1, 6-7, 447 N.Y.S.2d 132, 431 N.E.2d 617, we find defendant's claim in this regard to be untenable. The jury found defendant guilty of the two crimes which were supported by physical evidence, as well as the victim's testimony. The convictions do not indicate inconsistent or compromised verdicts (see, e.g., People v. Goodfriend, 100 A.D.2d 781, 782, 474 N.Y.S.2d 65, aff'd 64 N.Y.2d 695, 485 N.Y.S.2d 519, 474 N.E.2d 1187).

As to defendant's claim that County Court erred in denying defendant's request to charge voluntariness with respect to certain incriminating statements he made to police, we find no merit. Defendant elected to speak after he had been given Miranda warnings and waived his right to remain silent (see, People v. Savage, 50 N.Y.2d 673, 678, 431 N.Y.S.2d 382, 409 N.E.2d 858, cert. denied 449 U.S. 1016, 101 S.Ct. 577, 66 L.Ed.2d 475). The prosecution's questioning of defendant about omissions that defendant made when he elected to speak was admissible for impeachment purposes (see, id., 50 N.Y.2d at 679, 431 N.Y.S.2d 382, 409 N.E.2d 858). Defendant's request to charge on this issue was, therefore, properly denied. Defendant...