People v. Green

• Docket Number: 111083
• Decision Date: 29 September 2022
• Citation: 208 A.D.3d 1539,175 N.Y.S.3d 355
• Parties: The PEOPLE of the State of New York, Respondent, v. Christopher GREEN, Appellant.
• Court: New York Supreme Court — Appellate Division

208 A.D.3d 1539

175 N.Y.S.3d 355

The PEOPLE of the State of New York, Respondent,

v.Christopher GREEN, Appellant.

111083

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

Calendar Date: August 17, 2022

Decided and Entered: September 29, 2022

Matthew C. Hug, Albany, for appellant.

P. David Soares, District Attorney, Albany (Vincent Stark of counsel), for respondent.

Before: Egan Jr., J.P., Clark, Pritzker, Reynolds Fitzgerald and McShan, JJ.

MEMORANDUM AND ORDER

Reynolds Fitzgerald, J. Appeal from a judgment of the Supreme Court (Roger D. McDonough, J.), rendered January 18, 2019 in Albany County, upon a verdict convicting defendant of the crimes of rape in the second degree and criminal sexual act in the second degree (three counts).

In 2017, defendant – then 31 years old – was charged in a four-count indictment with rape in the second degree and criminal sexual act in the second degree. Following a jury trial, defendant was convicted of all four counts. Defendant was sentenced to a prison term of six years, to be followed by 10 years of postrelease supervision, for his conviction of rape in the second degree and concurrent prison terms of five years, to be followed by 10 years of postrelease supervision, for each of his convictions of criminal sexual act in the second degree. Defendant appeals.

Initially, defendant contends that his convictions are not supported by legally sufficient evidence and are against the weight of the evidence. As to the conviction of rape in the second degree, defendant contends that the People failed to prove he penetrated the victim's vagina. As to the criminal sexual act convictions, defendant asserts that the People failed to prove he engaged in anal sexual intercourse, thus failing to prove contact. "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. Dickinson, 182 A.D.3d 783, 783, 122 N.Y.S.3d 797 [3d Dept. 2020] [internal quotation marks and citations omitted], lv denied 35 N.Y.3d 1065, 129 N.Y.S.3d 408, 152 N.E.3d 1210 [2020] ); see People v. Horton, 173 A.D.3d 1338, 1340, 104 N.Y.S.3d 363 [3d Dept. 2019], lv denied 34 N.Y.3d 933, 109 N.Y.S.3d 701, 133 N.E.3d 402 [2019] ). "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. Flower, 173 A.D.3d 1449, 1450, 105 N.Y.S.3d 152 [3d Dept. 2019] [internal quotation marks and citations omitted], lv denied 34 N.Y.3d 931, 109 N.Y.S.3d 752, 133 N.E.3d 458 [2019] ; see People v. Cummings, 188 A.D.3d 1449, 1450, 136 N.Y.S.3d 524 [3d Dept. 2020], lv denied 36 N.Y.3d 1096, 144 N.Y.S.3d 132, 167 N.E.3d 1267 [2021] ).

As relevant here, a person is guilty of the crime of rape in the second degree when, being 18 years old or older, "he or she engages in sexual intercourse with another person less than [15] years old" ( Penal Law § 130.30[1] ). To convict defendant of the crime of criminal sexual act in the second degree, the People were required to show that defendant was 18 years old or older and "engage[d] in oral sexual conduct or anal sexual conduct with another person less than [15] years old" ( Penal Law § 130.45[1] ). "Oral sexual conduct" is defined as "conduct between persons consisting of contact between the mouth and the penis, the mouth and the anus, or the mouth and the vulva or vagina" ( Penal Law § 130.00[2][a] [internal quotation marks omitted]). " ‘Anal sexual conduct’ means conduct between persons consisting of contact between the penis and anus" ( Penal Law § 130.00[2][b] ). " ‘Sexual intercourse’ has its ordinary meaning and occurs upon any penetration, however slight" ( Penal Law § 130.00[1] ). It is undisputed that, at the time the acts were alleged to have taken place, defendant was 31 years old and the victim was 14.

At trial, the victim testified that she made a profile on a dating app called MeetMe. After creating the profile, she began communicating with the profile of a man who subsequently identified himself as defendant. The victim stated that defendant sent an Uber to her house to pick her up and bring her to his hotel. The victim then recounted, in detail, the vaginal intercourse and oral and anal sexual contact.

A sexual assault nurse examiner (hereinafter SANE) testified that she conducted a sexual assault examination of the victim. The SANE recalled the victim's description of where and how the incident occurred, which generally corroborated the victim's testimony. The SANE testified that during the exam, she noticed external trauma to the victim's body including tearing

in her perianal area, which was not actively bleeding but had not healed, and some vaginal tearing that was actively bleeding. A forensic scientist with the State Police testified concerning DNA analysis of the swabs and the clothing collected by the SANE and the police. She testified that a swab from the inside of a clear bag was a single-source DNA profile matching defendant. She also testified that the perianal swab of the underwear samples contained a mixture of DNA profiles and that, although she could not conclusively match the control profile of defendant, she was able to discern that he was a major contributor on these samples. She explained that being a major contributor meant that defendant and his biological paternal relatives could not be excluded as being major contributors to the DNA profiles tested. A police sergeant testified that he spoke to the victim after arriving at the hotel and subsequently spoke to defendant. During the conversation, defendant admitted that he had oral and anal contact with the victim, but claimed he was unable to have sexual intercourse.¹

As to the issue of penetration, the victim's unequivocal testimony, coupled with the SANE's observations, was more than ample to show that the requisite penetration occurred (see Penal Law § 130.00[1] ). As to the issues of oral and anal sexual conduct, all that is required is contact and, contrary to defendant's assertion, intercourse or penetration is not required (see Penal Law § 130.00[2][a], [b] ). The record conclusively shows the requisite contact. Viewing the foregoing evidence in the light most favorable to the People, we conclude that each and every element of the crimes charged were proven beyond a reasonable doubt (see People v. Horton, 173 A.D.3d at 1340, 104 N.Y.S.3d 363 ; People v. Glass, 150 A.D.3d 1408, 1410, 55 N.Y.S.3d 469 [3d Dept. 2017], lv denied 30 N.Y.3d 1115, 77 N.Y.S.3d 340, 101 N.E.3d 981 [2018] ; People v. Johnson, 24 A.D.3d 967, 968, 805 N.Y.S.2d 696 [3d Dept. 2005], lv denied 6 N.Y.3d 814, 812 N.Y.S.2d 454, 845 N.E.2d 1285 [2006] ).

Likewise, we find no support for defendant's assertion that the verdict is against the weight of the evidence. Although a different verdict would not have been unreasonable as the victim had some difficulties recalling all of the details of the incident, the issue of her own credibility was fully explored at trial. There was nothing incredible or inherently unbelievable about the victim's testimony. According great deference to the jury's resolution of credibility issues, we find no basis to disturb the verdict (see People v. Cummings, 188 A.D.3d at 1453, 136 N.Y.S.3d 524 ; People v. Pendell, 164 A.D.3d 1063, 1065, 82 N.Y.S.3d 257 [3d Dept. 2018], affd 33 N.Y.3d 972, 100 N.Y.S.3d 612, 124 N.E.3d 162 [2019] ; People v. Richards, 78 A.D.3d 1221, 1224, 909 N.Y.S.2d 841 [3d Dept. 2010], lv denied 15 N.Y.3d 955, 917 N.Y.S.2d 115, 942 N.E.2d 326 [2010] ).

Defendant next contends that Supreme Court should have suppressed the statements he made to the police at the hotel because they were the product of custodial interrogation that took place before he received Miranda warnings. We disagree. "The standard for assessing a suspect's custodial status is whether a reasonable person innocent of any wrongdoing would have believed that he or she was not free to leave" ( People v. Paulman, 5 N.Y.3d 122, 129, 800 N.Y.S.2d 96, 833 N.E.2d 239 [2005] [citations omitted]). "When determining whether a suspect is in police custody, various factors are considered, such as the amount of time the person spent with the police, whether his or her freedom of action was significantly restricted, the location of the questioning and the atmosphere under which it was conducted, the person's degree of cooperation, whether he or she was apprised of his or her constitutional rights and whether the questioning was investigatory or accusatory in nature" ( People v. Lyons, 200 A.D.3d 1222, 1223, 157 N.Y.S.3d 594 [3d Dept. 2021] [internal quotation marks and citations omitted], lv denied 37 N.Y.3d 1162, 160 N.Y.S.3d 723, 181 N.E.3d 1151 [2022] ).

At the suppression hearing, a police sergeant testified that an officer knocked on defendant's hotel room door and defendant allowed the police into his room. Upon noticing another man sleeping in the room, the sergeant asked defendant if he would step into the hallway to speak to him in a more private setting. Defendant agreed and the conversation moved to an area near the stairwell. The sergeant asked defendant some threshold crime scene inquiries – including for his identification – and defendant proffered his driver's license. The sergeant asked another officer to undertake a routine check of defendant's driver's license for any outstanding warrants. The...