People v. Hartle

• Decision Date: 08 March 2018
• Docket Number: 109453
• Parties: The PEOPLE of the State of New York, Respondent, v. Mark A. HARTLE, Appellant.
• Court: New York Supreme Court — Appellate Division

159 A.D.3d 1149

72 N.Y.S.3d 639

The PEOPLE of the State of New York, Respondent,

v.Mark A. HARTLE, Appellant.

109453

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

Calendar Date: January 9, 2018

Decided and Entered: March 8, 2018

John A. Cirando, Syracuse, for appellant.

Gary M. Pasque, District Attorney, Canton (Hannah E.C. Moore, New York Prosecutors Training Institute Inc., Albany, of counsel), for respondent.

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

MEMORANDUM AND ORDER

Clark, J.Appeal from a judgment of the County Court of St. Lawrence County (Champagne, J.), rendered August 15, 2016, upon a verdict convicting defendant of the crimes of rape in the first degree (four counts), criminal sexual act in the first degree (four counts), sexual abuse in the first degree (four counts), rape in the third degree (four counts), criminal sexual act in the third degree (five counts) and sexual abuse in the third degree (three counts).

Defendant was charged in a 31–count indictment with various sex crimes that occurred with a 15-year-old victim from the summer of 2014 to the fall of 2014. Prior to trial, County Court dismissed five counts of the indictment as multiplicitious, and, during defendant's jury trial, dismissed two more counts because the evidence was legally insufficient to maintain those counts. At the conclusion of trial, defendant was convicted of rape in the first degree (four counts), criminal sexual act in the first degree (four counts), sexual abuse in the first degree (four counts), rape in the third degree (four counts), criminal sexual act in the third degree (five counts) and sexual abuse in the third degree (three counts). Prior to sentencing, defendant moved, pursuant to CPL 330.30, to set aside the verdict based upon improper conduct by one or more of the jurors. County Court found the motion to be untimely, and, in any event, without merit, and denied the motion without a hearing. Thereafter, County Court sentenced defendant to an aggregate prison term of 54 years, to be followed by 10 years of postrelease supervision.¹ Defendant now appeals, and we affirm.

Initially, as to defendant's contention that the indictment was facially defective in that it failed to specify the exact location and time at which the sexual offenses were committed, defendant did not raise this waivable deficiency in his motion to dismiss the indictment (see CPL 210.20, 210.25 ), and this claim is therefore unpreserved for our review (see People v. Iannone, 45 N.Y.2d 589, 600, 412 N.Y.S.2d 110, 384 N.E.2d 656 [1978] ; People v. Slingerland, 101 A.D.3d 1265, 1265–1266, 955 N.Y.S.2d 690 [2012], lv denied 20 N.Y.3d 1104, 965 N.Y.S.2d 800, 988 N.E.2d 538 [2013] ; cf. People v. Stauber, 307 A.D.2d 544, 545, 763 N.Y.S.2d 854 [2003], lv denied 100 N.Y.2d 599, 766 N.Y.S.2d 175, 798 N.E.2d 359 [2003] ).

We next consider defendant's arguments that the verdict was not supported by legally sufficient evidence and that it was against the weight of the evidence. As to the former contention, defendant avers that the evidence with respect to his convictions for rape in the first degree (counts 7, 12, 18, 28), criminal sexual act in the first degree (counts 4, 10, 16, 26) and sexual abuse in the first degree (counts 8, 14, 20, 30) was deficient in that the People failed to produce legally sufficient proof of the element of forcible compulsion to sustain those counts. "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. Brousseau, 149 A.D.3d 1275, 1276, 52 N.Y.S.3d 534 [2017] [internal quotation marks, brackets and citations omitted]; see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). As relevant here, "a [person] is guilty of rape in the first degree when he or she engages in sexual intercourse with another person by forcible compulsion" ( People v. Luckette, 126 A.D.3d 1044, 1045, 4 N.Y.S.3d 720 [2015], lv denied 26 N.Y.3d 1110, 26 N.Y.S.3d 769, 47 N.E.3d 99 [2016] ; see Penal Law § 130.35[1] ). "A person is guilty of sexual abuse in the first degree when he or she subjects another person to sexual contact [b]y forcible compulsion" ( Penal Law § 130.65[1] ), and "[a] person is guilty of criminal sexual act in the first degree when he or she engages in oral sexual conduct or anal sexual conduct with another person ... [b]y forcible compulsion" ( Penal Law § 130.50[1] ). Forcible compulsion means, in relevant part, to compel by either "use of physical force" ( Penal Law § 130.00[8][a] ) or "a threat, express or implied, which places another person in fear of immediate death or physical injury to himself, herself or another person" ( Penal Law § 130.00[8][b] ).

At trial, the victim described in her testimony eight separate incidents of sexual offenses by defendant that began shortly after her fifteenth birthday in June 2014 and continued through the fall of 2014. The victim testified that defendant was a best friend to her father, that she had known defendant for all of her life and that her brother also had a close relationship with defendant. As to the four incidents that were alleged by the People to involve the element of forcible compulsion, the victim testified about two incidents that occurred during the summer of 2014 when the victim stayed overnight at defendant's home with one or more of her siblings. On each occasion, while sleeping on the couch, the victim was awoken by defendant, who pulled her into the bedroom and onto a bed whereupon defendant removed her clothes and had sexual intercourse with her. On both occasions, the victim resisted defendant's behavior by attempting to push him away and then dropping to the couch "[l]ike dead weight" to resist being pulled into the bedroom.

During another incident, which occurred at the summer camp of the victim's family, defendant approached the victim in the shower area, pulled off her towel and clothing, despite the victim's attempt to pull away from defendant, who then pulled her onto a bed and engaged in various sexual acts with her, including intercourse. The victim further testified about an incident in November 2014 at defendant's home, where defendant awoke her and pulled her into the bedroom to engage in sexual activity with her. The victim testified that she did not try to resist because she was not awake yet and because she knew that defendant would not stop.

As to the crimes involving the element of forcible compulsion, we find that, when viewing the evidence in the light most favorable to the People, the People proffered legally sufficient evidence at trial so that a rational juror could conclude that the element of forcible compulsion was established beyond a reasonable doubt (see People v. Lancaster, 121 A.D.3d 1301, 1303, 995 N.Y.S.2d 283 [2014], lv denied 24 N.Y.3d 1121, 3 N.Y.S.3d 762, 27 N.E.3d 476 [2015] ; People v. Scanlon, 52 A.D.3d 1035, 1038, 861 N.Y.S.2d 426 [2008], lv denied 11 N.Y.3d 741, 864 N.Y.S.2d 399, 894 N.E.2d 663 [2008] ; People v. Sehn, 295 A.D.2d 749, 750–751, 744 N.Y.S.2d 526 [2002], lv denied 98 N.Y.2d 732, 749 N.Y.S.2d 482, 779 N.E.2d 193 [2002] ). In so concluding, we are mindful that the forcible compulsion calculus must, as we have done here, take into consideration the young age of the victim, her relative size and strength compared to the adult defendant, defendant's close relationship to the victim and position of trust and authority within the victim's family and the victim's state of mind, including her expressed fear of telling her father about the incidents given his then close relationship with defendant (see People v. Lancaster, 121 A.D.3d at 1303, 995 N.Y.S.2d 283 ; People v. King, 79 A.D.3d 1277, 1278, 912 N.Y.S.2d 329 [2010], lv denied 16 N.Y.3d 860, 923 N.Y.S.2d 422, 947 N.E.2d 1201 [2011] ; People v. Scanlon, 52 A.D.3d at 1038–1039, 861 N.Y.S.2d 426 ; People v. Vasquez, 49 A.D.3d 1282, 1284, 853 N.Y.S.2d 767 [2008] ). Moreover, our conclusion is buttressed by the principles that "forcible compulsion is not synonymous with violence" ( People v. Pereza, 288 A.D.2d 689, 691, 733 N.Y.S.2d 510 [2001], lv denied 97 N.Y.2d 707, 739 N.Y.S.2d 108, 765 N.E.2d 311 [2002] ; accord People v. Luckette, 126 A.D.3d at 1046, 4 N.Y.S.3d 720 ), and "for a sex offense to be predicated upon forcible compulsion ‘neither physical injury nor screaming or crying out is required’ " ( People v. Scanlon, 52 A.D.3d at 1038, 861 N.Y.S.2d 426, quoting People v. Alford, 287 A.D.2d 884, 886, 731 N.Y.S.2d 563 [2001], lv denied 97 N.Y.2d 750, 742 N.Y.S.2d 610, 769 N.E.2d 356 [2002] ; see People v. Luckette, 126 A.D.3d at 1046, 4 N.Y.S.3d 720 ). Therefore, the counts involving forcible compulsion were supported by legally sufficient evidence.

As to defendant's claim that the verdict was against the weight of the evidence, where, as here, an alternative verdict would not have been unreasonable, we must, "like the trier of fact below, weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony" ( People v. Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [internal quotation marks and citation omitted] ). Defendant contends that the victim's testimony was uncorroborated by any other evidence and that her narrative of the incidents is incredible because she continued to place herself around defendant in vulnerable settings. However, "[w]here, as here, credibility issues are presented, ‘deference is accorded to the fact-finder's opportunity to view the witnesses, hear the testimony and observe demeanor’ " ( People v. Tubbs, 115 A.D.3d...