People v. Hackett

• Decision Date: 06 December 2018
• Docket Number: 109685
• Citation: 89 N.Y.S.3d 429,167 A.D.3d 1090
• Parties: The PEOPLE of the State of New York, Respondent, v. Kyle J. HACKETT, Appellant.
• Court: New York Supreme Court — Appellate Division

167 A.D.3d 1090
89 N.Y.S.3d 429

The PEOPLE of the State of New York, Respondent,
v.
Kyle J. HACKETT, Appellant.

109685

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

Calendar Date: October 10, 2018
Decided and Entered: December 6, 2018

89 N.Y.S.3d 432

Mary Jane Murphy, Binghamton, for appellant.

Joseph A. McBride, District Attorney, Norwich (Marlene O. Tuczinski, New York Prosecutors Training Institute, Inc., Albany, of counsel), for respondent.

Before: Garry, P.J., Lynch, Devine, Aarons and Pritzker, JJ.

MEMORANDUM AND ORDER

Lynch, J.

Appeal from a judgment of the County Court of Chenango County (Revoir Jr., J.), rendered September 9, 2016, upon a verdict convicting defendant of the crimes of rape in the third degree, sexual abuse in the first degree and endangering the welfare of a child.

In July 2014, defendant was indicted for the crimes of rape in the first degree, sexual abuse in the first degree and endangering the welfare of a child after the victim reported that he raped her in the bathroom of her home while she was babysitting. At the end of the ensuing jury trial, County Court charged the jury with, as relevant here, the lesser included offense of rape in the third degree. Defendant was acquitted of rape in the first degree but convicted of rape in the third degree, sexual abuse in the first degree and endangering the welfare of a child. County Court sentenced defendant to an aggregate prison term of five years, followed by five years of postrelease supervision. Defendant now appeals.

Initially, defendant's unspecified claim on appeal that the verdict was legally insufficient was not preserved by the general motion to dismiss made at the close of the People's proof (see People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946 [2008] ; People v. Secor, 162 A.D.3d 1411, 1412, 80 N.Y.S.3d 511 [2018], lv denied 32 N.Y.3d 941, 84 N.Y.S.3d 868, 109 N.E.3d 1168 [2018] ). However, as part of our weight of the evidence review, "we necessarily consider whether all of the elements of the charged crimes were proven beyond a reasonable doubt" ( People v. Planty, 155 A.D.3d 1130, 1131, 64 N.Y.S.3d 364 [2017] [internal quotation marks and citation omitted], lv denied 30 N.Y.3d 1118, 77 N.Y.S.3d 343, 101 N.E.3d 984 [2018] ; see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). This review is a "two-step approach" that requires us to first "determine whether, based on all of the credible evidence, an acquittal would not have been unreasonable"; if so, we then "weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony" ( People v. Sanchez , 32 N.Y.3d 1021, 1023, 87 N.Y.S.3d 135, 112 N.E.3d 312 [2018] [internal quotation marks and citations omitted]; see People v. Cole, 162 A.D.3d 1219, 1223, 78 N.Y.S.3d 783 [2018], lv denied 32 N.Y.3d 1002, 86 N.Y.S.3d 761, 111 N.E.3d 1117 [2018] ). If, after we weigh the testimony,

89 N.Y.S.3d 433

"it appears that the trier of fact has failed to give the evidence the weight it should be accorded, then [we] may set aside the verdict" ( People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). Where our review reveals credibility disputes, we accord "[g]reat deference ... to the fact-finder's opportunity to view the witnesses, hear the testimony and observe demeanor" ( People v. Romero, 7 N.Y.3d 633, 644, 826 N.Y.S.2d 163, 859 N.E.2d 902 [2006] [internal quotation marks and citation omitted]; see People v. Hartle, 159 A.D.3d 1149, 1153, 72 N.Y.S.3d 639 [2018], lv denied 31 N.Y.3d 1082, 79 N.Y.S.3d 104, 103 N.E.3d 1251 [2018] ).

As relevant here, the People had to establish that defendant "engage[d] in sexual intercourse with [the victim] without [the victim's] consent where such lack of consent [was] by reason of some factor other than incapacity to consent" ( Penal Law § 130.25[3] ), "subject[ed the victim] to sexual contact ... [b]y forcible compulsion" ( Penal Law § 130.65[1] ) and "knowingly act[ed] in a manner likely to be injurious to the physical, mental or moral welfare of a child less than [17] years old" ( Penal Law § 260.10[1] ). Defendant does not deny that he engaged in sexual intercourse with the victim or that he subjected her to sexual contact. Rather, he contends that the event was consensual and the verdict was against the weight of the evidence because the victim was not credible and because the evidence did not establish forcible compulsion. We are not persuaded.

The victim testified that on an afternoon in June 2014, when she was 17 years old, she was at her home babysitting her two younger sisters and a family friend when defendant unexpectedly arrived. The victim knew defendant, who was 29 years old at the time, as a family friend. Both the victim and her sister, who was 15 years old at the time, testified that the defendant was "play fighting" with the group and then sat next to the victim on the couch, poking her and "fooling" and "joking around." The victim testified that she was uncomfortable with defendant's attention, so she moved to another couch, but defendant followed her and sat next to her again. The victim's sister attempted to untie the victim's bathing suit top, believing it to be funny, and defendant took the victim's wrist, twisted it behind her back and pushed her into a nearby bathroom. Once inside, defendant locked the door and told the victim that they had "unfinished business." The victim proceeded to detail how defendant restrained her, told her to stop "pretending that [she didn't] like it," forcibly touched her and had sexual intercourse with her as she resisted, kicked and repeatedly asked him to stop and to open the door to let her out.

Consistent with the victim's testimony, the victim's sister testified that once she discovered the victim and defendant in the bathroom, she tried to open the door, but it was locked. As she tried to gain entry into the bathroom, she could hear the victim saying, "Open the door, open the door, you need to stop." The victim's sister recalled that the victim sounded upset. Eventually, she was able to pick open the lock to the door, but defendant pushed the door back with his foot. The victim's sister recalled that when defendant stepped aside and she was finally able to get into the bathroom, the victim's shorts were pushed down around her knees and she looked "like she had been hurt and she was upset."

The victim's former boyfriend testified that the victim texted him that defendant had just raped her and he contacted the victim's mother. The victim's mother testified that she left work and returned

89 N.Y.S.3d 434

home to find the victim crying, shaking and not able to talk. She took the victim to the hospital, where she was seen by a sexual assault nurse examiner (hereinafter SANE). During her testimony, the SANE detailed the procedure that she followed when she examined the victim. Further, the SANE testified that during her examination, she discovered certain injuries that were indicative of trauma that could have been caused by "[u]nwanted force."

Although a different verdict would not have been unreasonable, upon our review of the trial testimony and evidence, we find that the jury's verdict was not against the weight of the evidence. Insofar as it is relevant to the charge of rape in the third degree, "[l]ack of consent" can result from "[f]orcible compulsion" ( Penal Law § 130.05[2][a] ) or where "the victim clearly expressed that he or she did not consent to engage in such act, and a...