People v. Garrand

• Decision Date: 10 December 2020
• Docket Number: 109720
• Citation: 134 N.Y.S.3d 583,189 A.D.3d 1763
• Parties: The PEOPLE of the State of New York, Respondent, v. Daniel GARRAND, Appellant.
• Court: New York Supreme Court — Appellate Division

189 A.D.3d 1763

134 N.Y.S.3d 583

The PEOPLE of the State of New York, Respondent,

v.Daniel GARRAND, Appellant.

109720

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

Calendar Date: October 21, 2020

Decided and Entered: December 10, 2020

Stephen W. Herrick, Public Defender, Albany (James A. Bartosik Jr. of counsel), for appellant.

P. David Soares, District Attorney, Albany (Christopher D. Horn of counsel), for respondent.

Before: Egan Jr., J.P., Mulvey, Aarons, Pritzker and Colangelo, JJ.

MEMORANDUM AND ORDER

Pritzker, J. Appeal from a judgment of the County Court of Albany County (Lynch, J.), rendered August 18, 2017, upon a verdict convicting defendant of the crime of criminal sexual act in the first degree.

Defendant was charged by indictment with two counts of criminal sexual act in the first degree and one count of assault in the second degree stemming from allegations that he engaged in forcible anal and oral sexual conduct with the victim, an 81–year–old woman. Following a jury trial, defendant was convicted of one count of criminal sexual act in the first degree for the allegations relating to oral sexual conduct and was otherwise acquitted of the remaining counts. Defendant was sentenced to a prison term of eight years, to be followed by 10 years of postrelease supervision. Defendant appeals.

Defendant contends that the verdict is not supported by legally sufficient evidence and is against the weight of the evidence, specifically taking issue with the element of forcible compulsion. "Initially, as defendant's motion for a trial order of dismissal at the close of proof was not directed at the specific argument he raises on appeal, his legal sufficiency claim is unpreserved" ( People v. Porter, 184 A.D.3d 1014, 1014, 125 N.Y.S.3d 776 [2020] [internal quotation marks, brackets and citations omitted], lv denied 35 N.Y.3d 1069, 129 N.Y.S.3d 383, 152 N.E.3d 1185 [2020] ). Nevertheless, in the course of reviewing defendant's challenge to the weight of the evidence, "[this Court] necessarily evaluate[s] whether all elements of the charged crimes were proven beyond a reasonable doubt" ( People v. Stover, 178 A.D.3d 1138, 1139 n 1, 115 N.Y.S.3d 500 [2019], lv denied 34 N.Y.3d 1163, 120 N.Y.S.3d 249, 142 N.E.3d 1151 [2020] ; see People v. Saunders, 176 A.D.3d 1384, 1385, 111 N.Y.S.3d 445 [2019], lv denied 35 N.Y.3d 973, 125 N.Y.S.3d 12, 148 N.E.3d 476 [2020] ). "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 at 1139, 115 N.Y.S.3d 500 [internal quotation marks, brackets and citations omitted]; accord People v. Forney, 183 A.D.3d 1113, 1113–1114, 124 N.Y.S.3d 732 [2020], lv denied 35 N.Y.3d 1065, 129 N.Y.S.3d 397, 152 N.E.3d 1198 [2020] ). As relevant here, "[a] person is guilty of criminal sexual act in the first degree when he or she engages in oral sexual conduct ... with another person by forcible compulsion" ( Penal Law § 130.50[1] ). Within the context of sex offenses, forcible compulsion "means to compel by either use of physical force; or a threat, express or implied, which places [the victim] in fear of immediate death or physical injury" ( Penal Law § 130.00[8][a], [b] ).

The victim testified that she and defendant had previously had a consensual sexual relationship, but they had not had sexual intercourse for some time. The victim testified that when defendant came to her apartment on the day of the incident, he seemed agitated. Once defendant came inside, the victim directed him to take off the "silly looking pants" he was wearing and then instructed him to get some sleep. The victim testified that defendant began to cry saying, "I can't do this anymore," which prompted her to give him .5 milligrams of Lorazepam

,¹ which she is prescribed to treat her anxiety, and to rub his back while he laid in her bed. The victim testified that she left defendant in the bedroom and was sitting on the sofa in the living room when defendant walked over and straddled her, such that she was unable to move despite trying. Defendant's penis was erect and visibly protruding from the waistband of the orange mesh underwear he was wearing. The victim testified that defendant rubbed his penis across her face and on her lips while telling her that the liquid on it was semen and that she told him to "[s]top it." Defendant also unsuccessfully attempted to push a hairbrush under the victim's shorts into her vaginal area. When the victim attempted to rub the semen off of her lips, defendant slapped her twice. The victim explained that she had a nail file, which she looked down at, but told herself not to try anything because he would kill her. Defendant then took the nail file out of her hand and dragged her off the couch and across the rug, at which point he took off her underwear and shorts. The victim testified that defendant attempted to penetrate her vaginally and that she yelled out twice for help. Defendant stopped, but, after the victim returned to the sofa, he proceeded to drag her across the floor again, this time attempting to penetrate the victim anally. The victim yelled out very loudly. Defendant then got up and, shortly thereafter, picked up a heavy crystal bowl and said, "[Y]ou could probably hurt somebody with this." This comment led the victim to believe that defendant was either going to kill or seriously injure her, so she left her apartment and called the police.

The victim testified that, after going to the police station to give a statement, she went to the hospital, where she was examined by a sexual assault nurse examiner. The victim testified to various injuries that she sustained during the incident, including an injured spine

from being dragged off of the couch, brush burns on her elbows from the rug, damaged upper dentures and an injury on the left side of her jaw from defendant grabbing her face. Sade McKenzie, a resident physician at the hospital, testified that she treated the victim on the day of the incident. Her testimony regarding the victim's description of what had occurred that day was in line with the victim's testimony at trial. McKenzie testified that she observed injuries on the victim that were consistent with being dragged or held by those body parts. Testimony from two forensic scientists established that prostate-specific antigen, a component of seminal fluid, was detected on vulvar and vaginal swabs collected from the victim and that a DNA sample taken from a cutting of the victim's underwear matched the DNA profile of defendant.²

Multiple police officers also testified, explaining that when they arrived at the victim's apartment the day of the incident, defendant was naked and acting "very erratic" and "irrational," including repeatedly touching his genitals. Defendant was eventually handcuffed and brought to the police station to be interviewed. The video recording of defendant's interview was published to the jury and portions were played at trial. During the interview, defendant admitted to getting on top of the victim and "straddl[ing] her" while wearing mesh underwear. When asked if there was anything on his penis when it was near the victim's face, defendant confirmed that it was semen and said that he had told the victim, "[L]et me get this all over so when the police come, they can see the DNA." In addition to putting his penis near the victim's mouth, defendant admitted to pulling off her pants, putting his hand on her mouth when she asked him to stop and pulling her off the couch. When asked if he was attempting to help the victim sexually, defendant stated that his conduct was for the purpose of showing her that "sex could be used as a weapon" and to ensure her safety if defendant was not around. To that end, defendant claimed that he pulled the victim off the couch to test her strength and that he was more verbally harsh than he was physically. In alleging that he was not overly rough with the victim, he stated that she "only had some marks on her and stuff like that."

Defendant also testified at trial, explaining that he met the victim in 2011, that they began having an intimate relationship thereafter and that they even lived together. Defendant testified that he moved out of the victim's residence approximately two months before the day of the incident, but still went to visit every day. Defendant testified that on the morning of the incident, he "wasn't all together" and explained that he had been arrested earlier that morning. Defendant testified that the victim let him into her apartment and that he cried to the victim for about an hour and then went into the bedroom, where the victim talked to him while he cried for another hour. He testified that the victim told him to take off his clothes, including his "silly pants," and get into her bed, at which point she rubbed his back to help his anxiety and gave him two aspirin and four Lorazepam. Defendant testified that he and the victim laid together in the bed and that she said he could "thank her later." At this point, defendant's testimony began to diverge from that of the victim, as well as from his own statements during the police interview. Defendant claimed that the victim initiated the oral sex, which lasted less than a minute because he "wasn't really into it." Defendant testified that this seemed to make the victim "really angry" and the two began to argue. Defendant explained that he attempted to pacify the victim, but that his attempts were fruitless, and that the victim grabbed her keys and stormed out of the apartment saying, "[E]verything is a ... joke...