People v. Flower

• Citation: 105 N.Y.S.3d 152,173 A.D.3d 1449
• Decision Date: 20 June 2019
• Docket Number: 108910,109624
• Parties: The PEOPLE of the State of New York, Respondent, v. Jeffrey D. FLOWER, Appellant.
• Court: New York Supreme Court Appellate Division

173 A.D.3d 1449
105 N.Y.S.3d 152

The PEOPLE of the State of New York, Respondent,
v.
Jeffrey D. FLOWER, Appellant.

108910
109624

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

Calendar Date: April 30, 2019
Decided and Entered: June 20, 2019

Paul J. Connolly, Delmar, for appellant.

P. David Soares, District Attorney, Albany (Emily Schultz of counsel), for respondent.

Before: Garry, P.J., Clark, Mulvey, Devine and Pritzker, JJ.

MEMORANDUM AND ORDER

Pritzker, J.

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Defendant was charged by indictment with two counts of rape in the first degree

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(counts 1 and 3), one count of rape in the third degree (count 2) and two counts of endangering the welfare of a child (counts 4 and 5). Counts 1 through 4 stemmed from defendant's sexual conduct with victim A, who was the daughter of defendant's long-term girlfriend (hereinafter the mother). Count 5 stemmed from defendant's inappropriate conduct with victim B, who was a friend of victim A. Following a jury trial, defendant was convicted as charged. On the four convictions relating to victim A, defendant was sentenced to

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four concurrent prison terms, the greatest of which was 25 years, followed by 15 years of postrelease supervision, and, with regard to the endangering the welfare of a child conviction involving victim B, defendant was sentenced to a one-year jail term, with that sentence to run consecutively to the other four sentences. Defendant thereafter moved pursuant to CPL 440.10 to vacate the judgment of conviction on the ground that he received the ineffective assistance of counsel. County Court denied the motion without a hearing. Defendant appeals from the judgment of conviction and, by permission, from the order denying his CPL 440.10 motion.

Defendant argues that his two convictions of rape in the first degree (counts 1 and 3) and his conviction of endangering the welfare of a child as to victim B (count 5) were not supported by legally sufficient evidence and were against the weight of the evidence. "In conducting a legal sufficiency analysis, this Court views the evidence in the light most favorable to the People and evaluates 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. Hartle , 159 A.D.3d 1149, 1151, 72 N.Y.S.3d 639 [2018] [internal quotation marks and citations omitted], lv denied 31 N.Y.3d 1082, 79 N.Y.S.3d 104, 103 N.E.3d 1251 [2018] ; see People v. Nelligan , 135 A.D.3d 1075, 1076, 22 N.Y.S.3d 697 [2016], lv denied 27 N.Y.3d 1072, 38 N.Y.S.3d 843, 60 N.E.3d 1209 [2016] ). "In contrast, a weight of the evidence analysis requires us to first determine, based on all of the credible evidence, whether a different result would have been unreasonable and, if not, weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony to determine if the verdict is supported by the weight of the evidence" ( People v. Wilson , 164 A.D.3d 1012, 1014, 83 N.Y.S.3d 705 [2018] [internal quotation marks and citations omitted]; see People v. Perry , 154 A.D.3d 1168, 1169, 63 N.Y.S.3d 570 [2017] ).

We turn first to defendant's contentions regarding his convictions for rape in the first degree. Victim A testified that, in October 2012, when she was 15 years old, both she and defendant were sick and, because of this, the mother had victim A and defendant sleep in the same room in a bed together. Victim A testified that one night, in December 2012, she woke up in bed not wearing any of the clothes that she had on when she fell asleep. She explained that defendant, whose legs were on either side of her body near her thighs, was holding her wrists as he forced his penis into her vagina. She further explained that she tried to move away, but defendant, in response, applied

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more pressure on her wrists, holding her down tighter. Victim A also testified that she attempted to lift her arms, but that defendant slammed them back down. Victim A explained that, immediately after the incident, defendant told her to be quiet and not to say anything and that, about a week later, defendant began telling her that if

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she told anyone what had happened, the mother would hate her and that she would not be able to see her brother.

Victim A explained that defendant, during the years that followed, continued to wake her up approximately once per week to engage in sexual conduct. She stated that she eventually did not fight as much because "it was just what [her] life was going to be [like]." According to victim A, she would try not to sleep in the same bed with defendant, but the mother would typically say no. Victim A also testified about two instances – one when she called out for the mother and another when her brother walked into the room when defendant was on top of her. Victim A testified that the last time that defendant had sexual intercourse with her was in March 2015. Victim A explained that she woke up and defendant, who was halfway on the bed, had already put his penis into her vagina. Victim A further explained that defendant was holding her arms and that, when she tried to pull her arms upwards out of defendant's grip, he held her arms down tighter, placing pressure on her arms, which prevented her from moving. Victim A testified that she moved out shortly after this last incident.

The mother testified that, after victim A recovered from being sick, she never made victim A sleep in the bed with defendant, but that victim A continued to do so for three years. The mother further testified that she suspected something was happening in the room and that she once heard victim A calling her name but, when she entered the bedroom, victim A said that nothing was happening. The mother acknowledged that there came a time when victim A's brother told her that he thought he saw something, but when the mother asked victim A about it, she said nothing. The mother also testified that there came a time when she and defendant told a neighbor, who lived in the apartment below theirs, that defendant and victim A had a relationship when victim A was 17 years old. The neighbor testified that defendant told her that he had been in a relationship with victim A for three years. The neighbor asked defendant to clarify what kind of relationship it was, to which defendant replied that it was a sexual relationship, emphasizing that he waited until victim A was 15 years old before he pursued the relationship because, in his view, that "was more of a legal age."

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A friend of victim A testified that, on April 19, 2015, defendant sent her text messages wherein he stated that he had a consensual sexual relationship with victim A that had been ongoing for about one year. This friend further testified that, after informing victim A about those text messages, she and victim A went downstairs to speak to victim A's aunt. The aunt also testified about what occurred on April 19, 2015, explaining that victim A came to her appearing "[v]ery upset and scared" and that, in response to the conversation that they had, she took victim A to the local police department. The aunt added that she received text messages from defendant's cell phone a couple of months later in which he said twice that "you can't rape the willing." Defendant testified on his own behalf regarding sexual conduct with victim A and stated that he did nothing of a sexual nature while he slept next to her until she was 17 years old. Defendant explained that, one day, victim A approached him and said that she could be his girlfriend and that, after they discussed it, things escalated between them. A couple of weeks later, the relationship became physical and, according to defendant, he and victim A then had a consensual sexual relationship.

In our view, the foregoing evidence, viewed in the light most favorable to the

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People, provided a valid line of reasoning and permissible inferences from which a rational juror could conclude that defendant committed the crime of rape in the first degree by engaging in sexual intercourse with victim A, without her consent and by forcible compulsion, in December 2012 and March 2015 as charged in the indictment (see Penal Law § 130.35[1] ; People v. Wilson , 164 A.D.3d at 1015, 83 N.Y.S.3d 705 ). Victim A testified both to her lack of consent during these two incidents, as well as defendant's use of physical force, specifically holding her down so that she could not get away (see Penal Law § 130.00[8] ). Given defendant's testimony that the sexual relationship was consensual and did not begin until victim A was 17, a different verdict would not have been unreasonable. However, "viewing the evidence in a neutral light and deferring to the...