People v. Forney, 109876

• Decision Date: 21 May 2020
• Docket Number: 109876
• Citation: 183 A.D.3d 1113,124 N.Y.S.3d 732
• Parties: The PEOPLE of the State of New York, Respondent, v. Jeffrey A. FORNEY Jr., Appellant.
• Court: New York Supreme Court — Appellate Division

183 A.D.3d 1113

124 N.Y.S.3d 732

The PEOPLE of the State of New York, Respondent,

v.Jeffrey A. FORNEY Jr., Appellant.

109876

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

Calendar Date: March 27, 2020

Decided and Entered: May 21, 2020

Easton Thompson Kasperek Shiffrin, Rochester (Brian Shiffrin of counsel), for appellant.

Joseph G. Fazzary, District Attorney, Watkins Glens (John C. Tunney of counsel), for respondent.

Before: Garry, P.J., Egan Jr., Lynch, Mulvey and Reynolds Fitzgerald, JJ.

MEMORANDUM AND ORDER

Mulvey, J. Defendant was charged by indictment with three counts of predatory sexual assault and one count of unlawfully dealing with a child in the first degree. The charges arose after defendant, Aaron Bowen and Lyle Beebe met an 18–year–old female (hereinafter the victim) and brought her to defendant's house, where they all drank alcohol; the victim awoke in the hospital the next day with no recollection of most of the prior night. A joint jury trial of defendant and Bowen ended in a mistrial due to the jury being deadlocked. Thereafter, defendant's matter was severed from Bowen's and defendant waived his right to a jury trial. At his bench trial, the parties stipulated into evidence the transcript and exhibits from the jury trial, although County Court could not consider Bowen's statements as evidence against defendant. The court found defendant guilty of two counts of predatory sexual assault, for which it imposed concurrent prison terms of 21 years to life, and one count of unlawfully dealing with a child in the first degree, for which it imposed a concurrent one-year term of incarceration. Defendant appeals.

The verdict as to the two counts of predatory sexual assault is not against the weight of the evidence.¹ "A weight of the evidence review requires this Court to first determine whether, based on all the credible evidence, a different finding would not have been unreasonable. Where a different finding would not have been unreasonable, this Court must 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. Stover, 178 A.D.3d 1138, 1139, 115 N.Y.S.3d 500 [2019] [internal quotation marks, brackets and citations omitted], lv denied 34 N.Y.3d 1163, 120 N.Y.S.3d 249, 142 N.E.3d 1151 [2020] ). "A person is guilty of predatory sexual assault when he or she commits the crime of rape in the first degree [or] criminal sexual act in the first degree ... and when ... [h]e or she has previously been subjected to a conviction for a felony defined in [Penal Law article 130]" ( Penal Law § 130.95[3] ). The last element was satisfied by defendant's admission that in 2013 he was convicted of attempted sexual abuse in the third degree. The definitions of rape in the first degree and criminal sexual act in the first degree require certain sexual activity with another person who, as relevant here, "is incapable of consent by reason of being physically helpless" ( Penal Law §§ 130.35[2] ; 130.50[2] ). Defendant's former girlfriend testified that defendant admitted to her that he engaged in vaginal intercourse and anal sexual conduct with the victim. Considering that evidence, along with proof that the victim complained of soreness in her vaginal and anal areas, physical helplessness remains as the only element truly in dispute.

" ‘Physically helpless’ means that a person is unconscious or for any other reason is physically unable to communicate unwillingness to an act" ( Penal Law § 130.00[7] ; see People v. Edison, 167 A.D.3d 769, 770, 89 N.Y.S.3d 314 [2018], lv denied 33 N.Y.3d 947, 100 N.Y.S.3d 172, 123 N.E.3d 831 [2019] ). "A person who is asleep or unable to communicate as a result of voluntary intoxication is considered to be physically helpless" ( People v. Bjork, 105 A.D.3d 1258, 1260, 963 N.Y.S.2d 472 [2013] [citations omitted], lv denied 21 N.Y.3d 1040, 972 N.Y.S.2d 538, 995 N.E.2d 854 [2013], cert denied 571 U.S. 1213, 134 S.Ct. 1306, 188 L.Ed.2d 328 [2014] ; see People v. Himmel, 252 A.D.2d 273, 276, 686 N.Y.S.2d 504 [1999], lv denied 93 N.Y.2d 899, 689 N.Y.S.2d 711, 711 N.E.2d 987 [1999] ). The victim testified that she remembers going to defendant's house, playing pool, drinking two shots of vodka and a mixed drink, then nothing until the following afternoon when she awoke at the hospital. She did not recall engaging in any sexual activity, nor did she recall being found by the side of the road, riding to the hospital in an ambulance, or speaking to police or medical personnel throughout the morning. Beebe testified that the victim drank vodka shots and a mixed drink, began drinking swigs of vodka from the bottle, then drank three quarters of a pint glass of vodka rather quickly, as if it were water. After she consumed the glass of vodka, the victim stumbled to a counter and held herself up with her elbows. Beebe testified that the victim became "incoherent," "could hardly talk" and "could hardly stand on her own two feet without any type of support," and her motor functions were shutting down, "[h]er legs were [like] noodles," the bottom half of her body was "limp" like a "rag doll" and she had little to no control. Her condition appeared to be worsening and Beebe thought her physical state reflected the symptoms of alcohol poisoning. Beebe left defendant's house at approximately 2:30 a.m., and the victim had not consumed alcohol for 30 to 40 minutes before he left.

Two witnesses testified that when they found the victim by the road between 6:15 a.m. and 6:30 a.m., she was unresponsive, had slurred speech when she finally responded and was unable to get up or even roll herself over. A hospital blood test at 8:40 a.m. revealed that her blood alcohol content (hereinafter BAC), when converted to a whole blood figure as required for legal proceedings, was between .22% and .23%. The People's expert, Mark Waruch, conducted a reverse extrapolation² and determined that the victim's BAC would have been between .28% and .38% at 2:40 a.m. He testified that a BAC between .20% and .30% reflects dramatic impairment, and between .30% and .39% seriously impacts an individual such that the person is not able to move about on his or her own or speak coherently, and may drift in and out of consciousness.

On recorded phone calls from jail, when defendant was discussing the victim and her statement to police, he said that "obviously she don't know" and he was "pretty sure she doesn't know what happened." He also indicated his belief that he could not be charged if no DNA evidence was discovered; this would not be correct if he believed that the victim had been conscious and able to remember the sexual activity. The evidence of the victim's extreme intoxication from at least 2:00 a.m. until after she arrived at the hospital indicates that she was physically helpless throughout that time, which necessarily includes the time of defendant's sexual activity with her. Although a different verdict would not have been unreasonable had the trier of fact found some of the witnesses incredible, the verdict is not against the weight of the evidence.

Defendant acknowledges that he did not object to Waruch's testimony or move to strike it on the basis that Waruch lacked the necessary foundation for his calculations. Hence, that argument is not preserved, and we decline to exercise our interest of justice jurisdiction. Nevertheless, defendant also raises counsel's failure to assert that argument as part of his allegations of ineffective assistance of counsel.

Defendant argues that he was denied the effective assistance of counsel due to defense counsel's failure to (1) seek preclusion of Waruch's reverse extrapolation testimony as lacking foundation, (2) object to the victim's testimony that she did not consent to engaging in sexual acts, despite her inability to recall anything during the time in which the acts occurred, and (3) object to the testimony of defendant's former girlfriend that, based on her conversations with defendant, she assumed that the victim was unconscious when defendant engaged in the sexual acts at issue. "To establish a claim of ineffective assistance of counsel, [a] defendant is required to demonstrate that he [or she] was not provided meaningful representation and that there is an absence of strategic or other legitimate explanations for counsel's...