People v. Butkiewicz

• Decision Date: 08 August 2019
• Docket Number: 109184
• Citation: 175 A.D.3d 792,107 N.Y.S.3d 181
• Parties: The PEOPLE of the State of New York, Respondent, v. Michael J. BUTKIEWICZ, Appellant.
• Court: New York Supreme Court — Appellate Division

175 A.D.3d 792

107 N.Y.S.3d 181

The PEOPLE of the State of New York, Respondent,

v.Michael J. BUTKIEWICZ, Appellant.

109184

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

Calendar Date: May 30, 2019

Decided and Entered: August 8, 2019

MEMORANDUM AND ORDER

Rumsey, J. Appeal from a judgment of the County Court of Warren County (Hall Jr., J.), rendered August 1, 2016, upon a verdict convicting defendant of the crimes of attempted rape in the first degree, sexual abuse in the first degree, assault in the second degree, strangulation in the second degree and unlawful imprisonment in the second degree.

In a five-count indictment, defendant was charged with attempted rape in the first degree, sexual abuse in the first degree, assault in the second degree, strangulation in the second degree and unlawful imprisonment in the second degree. Following a suppression hearing and a jury trial, defendant was convicted as charged and sentenced to consecutive prison terms of 15 years for his conviction of attempted rape in the first degree, seven years for his conviction of sexual abuse in the first degree and seven years for his conviction of strangulation in the second degree, and to lesser concurrent prison terms on the remaining convictions.¹ Defendant appeals.

Defendant contends that the verdict with respect to his conviction of attempted rape in the first degree is not supported by legally sufficient evidence or, in the alternative, is against the weight of the evidence. "When considering a challenge to the legal sufficiency of the evidence, we view the evidence in the light most favorable to the People and evaluate whether there is any valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial and as a matter of law satisfy the proof and burden requirements for every element of the crime charged" ( People v. Granger , 166 A.D.3d 1377, 1378, 88 N.Y.S.3d 706 [2018] [internal quotation marks and citations omitted] ). In contrast, when assessing the weight of the evidence, we first consider whether a different verdict would have been unreasonable and, if not, we "weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony" ( People v. McCoy , 169 A.D.3d 1260, 1261–1262, 95 N.Y.S.3d 441 [2019] [internal quotation marks and citations omitted], lv denied 33 N.Y.3d 1033, 102 N.Y.S.3d 517, 126 N.E.3d 167 [2019] ). As relevant here, a conviction for attempted rape in the first degree requires proof that the defendant "intended and came dangerously close to engaging in forcible sexual intercourse" with another person ( People v. Nehma , 101 A.D.3d 1170, 1171, 954 N.Y.S.2d 706 [2012] ; see Penal Law §§ 110.00, 130.35[1] ).

Defendant argues that the evidence at trial did not establish that he was dangerously close to committing rape in the first degree. We disagree. The victim testified that, at approximately 7:30 p.m. on October 21, 2015, she was at her house when she heard the doorbell ring and, upon taking her dog by his collar, she opened the door "a little bit." The victim stated that defendant – whom she did not immediately recognize – informed her that he was "Mike from across the street" and had locked himself out of his house. He told the victim that his cell phone was running out of battery, that his wife was at work and that he was wondering whether he could borrow a phone charger. She indicated that, once defendant was inside of her house, she noticed that he appeared "fidgety" and "unsettled," had "bloodshot" eyes and smelled of alcohol. The victim stated that, after learning that her phone charger was not compatible with his cell phone, defendant asked whether he could use the victim's phone; when defendant attempted to call his wife, the cell phone inside of his pocket rang. According to the victim, defendant looked "surprised" and "flustered" and asked the victim to dial his wife's phone number for him. After dialing a phone number dictated by defendant, she handed him her cell phone and, when his phone calls went to voicemail, she sent a text message to defendant's wife to explain the situation.

The victim stated that, while they were waiting to hear from defendant's wife, defendant asked her for a card to "slip the lock" of his house. According to the victim, defendant represented that he did not know what he was doing and requested that she assist him. Although the victim thought it was "very strange" that defendant needed assistance, she agreed to help him. The victim explained that, when she and defendant arrived at his front door, he "immediately" placed his left hand on the doorknob. The victim further explained that, as she tried to "jimmy the lock with the card," she was unsure as to whether it would work because she did not have the doorknob to turn. She testified that, when she saw the door open "a tiny bit," she "immediately" felt defendant's hand on the back of her neck. The victim stated that defendant – who, by her estimation, is about one foot taller and 100 pounds heavier than she – grabbed her and pushed her inside, causing her to land on her hands and knees. The victim recalled seeing "[b]ig, thick pieces of glass" all over the floor and thinking that "something really bad happened in this house already." The victim pleaded with defendant to let her go and, in response, he punched her in the face. As the victim screamed and continued to plead with defendant, defendant choked her, grabbed her around the waist and dragged her to a doorway between two rooms. According to the victim, defendant then said that he was "going to cum inside of [her]" and, in response to another scream, either punched or choked her.

The victim recalled trying to keep her legs together and defendant ripping open her shirt and bra, pulling up her skirt and tearing off her tights. She further recalled that defendant forced her legs open, pulled her underwear to the side and forced his fingers inside of her vagina. The victim testified that, while defendant appeared to be stroking himself, she continued to plead with him until she realized that he had released her from his grip. The victim further testified that, after directing her to sit on the couch so that he could "think," defendant permitted her to leave his house. Defendant, who testified on his own behalf, gave a different version of the events and maintained that any sexual contact with the victim was consensual. The foregoing – viewed in the light most favorable to the People – presented a valid line of reasoning and permissible inferences from which a rational juror could conclude that defendant intended to commit rape and came dangerously close to doing so (see Penal Law §§ 110.00, 130.35[1] ; People v. Clyde , 18 N.Y.3d 145, 155, 938 N.Y.S.2d 243, 961 N.E.2d 634 [2011], cert denied 566 U.S. 944, 132 S.Ct. 1921, 182 L.Ed.2d 784 [2012] ; People v. Lamagna , 30 A.D.3d 1052, 1053, 817 N.Y.S.2d 795 [2006], lv denied 7 N.Y.3d 814, 822 N.Y.S.2d 489, 855 N.E.2d 805 [2006] ).

With respect to the weight of the evidence, defendant challenges the credibility of the victim, specifically pointing to inconsistences between the victim's testimony at trial and her testimony before the grand jury, as well as her statements to the police. Initially, it would not have been unreasonable for the jury to have resolved the credibility issues differently in this case and reached the opposite conclusion. However, these inconsistences – all of which were thoroughly explored on cross-examination – "neither undermined [the victim's] testimony in any meaningful respect nor rendered her testimony incredible as a matter of law" ( People v. St. Ives , 145 A.D.3d 1185, 1187, 43 N.Y.S.3d 187 [2016] [internal quotation marks and citations omitted], lv denied 29 N.Y.3d 1036, 62 N.Y.S.3d 305, 84 N.E.3d 977 [2017] ). Rather, any testimony from the victim at trial that differed from her grand jury testimony or her statements to the police presented a credibility issue for the jury to resolve (see People v. Introne , 172 A.D.3d 1538, 1539, 100 N.Y.S.3d 416 [2019] ; People v. Wells , 141 A.D.3d 1013, 1023, 35 N.Y.S.3d 795 [2016], lvs denied 28 N.Y.3d 1183, 1189, 52 N.Y.S.3d 710, 716, 75 N.E.3d 102, 108 [2017]). According deference to the jury's credibility assessments, and viewing the evidence in a neutral light, we conclude that the verdict convicting defendant of attempted rape in the first degree is supported by the weight of the evidence (see People v. Hackett , 167 A.D.3d 1090, 1093–1094, 89 N.Y.S.3d 429 [2018] ; People v. Bautista , 147 A.D.3d 1214, 1216–1217, 47 N.Y.S.3d 503 [2017] ; People v. Nehma , 101 A.D.3d at 1171, 954 N.Y.S.2d 706 ; People v. Shofkom , 63 A.D.3d 1286, 1287, 880 N.Y.S.2d 758 [2009], lv denied 13 N.Y.3d 799, 887 N.Y.S.2d 549, 916 N.E.2d 444 [2009], lv dismissed 13 N.Y.3d 933, 895 N.Y.S.2d 310, 922 N.E.2d 898 [2010] ).

We are unpersuaded by defendant's contention that County Court erred in denying his motion to suppress evidence obtained from his cell phone because his wife did not have common authority over it. The police may lawfully conduct a warrantless search by " ‘showing that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected’ " ( People v. Gonzalez , 88 N.Y.2d 289, 293, 644 N.Y.S.2d 673, 667 N.E.2d 323 [1996] [brackets and emphasis omitted], quoting United States v. Matlock , 415 U.S. 164, 171, 94 S.Ct. 988, 39 L.Ed.2d 242 [1974] ; see People v. Adams , 53 N.Y.2d 1, 8, 439 N.Y.S.2d 877, 422 N.E.2d 537 [1981], cert denied 454 U.S. 854, 102 S.Ct. 301, 70 L.Ed.2d 148 [1981] ). Common authority is not to be construed "in any narrow property sense, but ‘rather on mutual use of the property by persons generally having joint access or control for most...