People v. Brown

• Decision Date: 04 June 1998
• Citation: 674 N.Y.S.2d 149,251 A.D.2d 694
• Parties: , 1998 N.Y. Slip Op. 5333 The PEOPLE of the State of New York, Respondent, v. James W. BROWN, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 149

674 N.Y.S.2d 149

251 A.D.2d 694, 1998 N.Y. Slip Op. 5333

The PEOPLE of the State of New York, Respondent, v. James W. BROWN, Appellant.

Supreme Court, Appellate Division Third Department.

June 4, 1998.

Michael P. Graven, Owego, for appellant.

James T. Hayden, District Attorney, Elmira, for respondent.

Before CARDONA, P.J., and MERCURE, CREW, YESAWICH and PETERS, JJ.

CARDONA, Presiding Justice.

Appeal from a judgment of the County Court of Chemung County (Castellino, J.), rendered March 22, 1996, upon a verdict convicting defendant of the crimes of burglary in the second degree and attempted sexual abuse in the first degree.

On August 15, 1995, at approximately 5:00 A.M., the victim, who had been asleep on her couch in the living room of the apartment she shared with her mother and her mother's boyfriend, awoke to find a man's hand approximately four to five inches above her breast. The man turned and ran into the kitchen. Believing the man to be her boyfriend, the victim called out for the man to "come here". When the man complied, she recognized him as defendant, her next door neighbor. The victim, who did not know defendant's name and had no previous relationship with him, inquired as to why he was in her house and how he had entered. Defendant responded that he was there because he liked her and that he had entered through the open back door, which the victim knew to be untrue because it was closed when she retired. The victim got up and told defendant that he had to leave and began walking to the front door. Defendant walked toward her and reached out to touch her. He asked her if she wanted to "fool around" and she replied in the negative, pushing his hand away when it was approximately four to five inches from her breasts. She again told him to leave and he complied.

Defendant was indicted on the charges of burglary in the second degree and attempted sexual abuse in the first degree. The matter proceeded to trial and at the close of the People's case, County Court denied defendant's motion for a trial order of dismissal (see, CPL 290.10[1] ). The jury found defendant guilty of both charges and he was sentenced as a second felony offender to concurrent prison terms of 7 1/2 to 15 years on the burglary conviction and 2 to 4 years on the attempted sexual abuse conviction.

Defendant contends that the jury's verdict finding him guilty of attempted sexual abuse in the first degree is not supported by legally sufficient evidence in that the People failed to prove forcible compulsion, a necessary element of the crime (see, Penal Law § 130.65[1] ). We agree. As relevant here, " '[f]orcible compulsion' means to compel by either: * * * use of physical force; or * * * a threat, express or implied, which places a person in fear of immediate death or physical injury to * * * herself or another person" (Penal Law § 130.00[8][a], [b]; see, People v. Archer, 232 A.D.2d 820, 820-821, 649 N.Y.S.2d 204, lv. denied 89 N.Y.2d 1087, 660 N.Y.S.2d 381, 682 N.E.2d 982). Viewing the evidence in the light most favorable to the prosecution, we find that the jury could not have rationally inferred that defendant intended to accomplish the sexual contact through forcible compulsion (see, People v. Sirno, 151 A.D.2d 621, 542 N.Y.S.2d 368, affd. 76 N.Y.2d 967, 563 N.Y.S.2d 730, 565 N.E.2d 479; People v. Mendez, 133 A.D.2d 351, 519 N.Y.S.2d 252, lv. denied 70 N.Y.2d 958, 525 N.Y.S.2d 842, 520 N.E.2d 560; compare, People v. Thompson, 72 N.Y.2d 410, 416, 534 N.Y.S.2d 132, 530 N.E.2d 839; People v. Miller, 226 A.D.2d 833, 836, 640 N.Y.S.2d 904, lv. denied 88 N.Y.2d 939, 647 N.Y.S.2d 172, 670 N.E.2d 456; People v. Bailey, 178 A.D.2d 846, 577 N.Y.S.2d 904, lv. denied 79 N.Y.2d 943, 583 N.Y.S.2d 197, 592 N.E.2d 805). However, the People did present sufficient evidence to support a conviction of the lesser included offense of attempted sexual abuse in the third degree, a class B misdemeanor (see, CPL 470.15[2][a]; Penal Law § 110.05[8]; § 130.55), because there was no reasonable view of the evidence that defendant did not possess the intent to engage in sexual contact without the victim's consent. Accordingly, defendant's conviction for attempted sexual abuse in the first degree under the second count of the indictment is reduced to attempted sexual abuse in the third degree.

We now turn to whether the People established defendant's guilt of burglary in the second degree by legally sufficient evidence. Ordinarily to sustain a burglary charge, the People are not required to demonstrate the exact crime which a defendant intended to commit at the time he or she entered or remained unlawfully in a building (see, People v. Mackey, 49 N.Y.2d 274, 278-281, 425 N.Y.S.2d 288, 401 N.E.2d 398). Here, although the first count of the indictment did not specifically limit the burglary charge to a particular crime, the victim's testimony effectively limited the People's theory to one...