People v. Hoppe

• Decision Date: 14 June 2012
• Citation: 946 N.Y.S.2d 671,96 A.D.3d 1157,2012 N.Y. Slip Op. 04789
• Parties: The PEOPLE of the State of New York, Respondent, v. Joseph G. HOPPE, Appellant.
• Court: New York Supreme Court — Appellate Division

96 A.D.3d 1157

946 N.Y.S.2d 671

2012 N.Y. Slip Op. 04789

The PEOPLE of the State of New York, Respondent,

v.Joseph G. HOPPE, Appellant.

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

June 14, 2012.

Mitch Kessler, Cohoes, for appellant.

Gerald F. Mollen, Binghamton (Joann Rose Parry of counsel), for respondent.

Before: ROSE, J.P., MALONE JR., STEIN, GARRY and EGAN JR., JJ.

GARRY, J.

Appeal from a judgment of the County Court of Broome County (Smith, J.), rendered January 8, 2010, upon a verdict convicting defendant of the crimes of predatory sexual assault (three counts), attempted rape in the first degree (three counts), criminal possession of a weapon in the third degree and grand larceny in the fourth degree.

In March 2008, defendant invited victim A to his apartment. Victim A later testified that when she arrived, he prevented her from leaving, forced her to participate in sexual acts and told her that he would kill her if she told anyone what had happened. In June 2008, victim B went to defendant's apartment, purportedly to help him move furniture. She testified that he forced her to perform oral sex, attempted to have intercourse with her and threatened to kill her. After victim B alerted police, defendant was indicted for various crimes arising from the June 2008 incident. Thereafter, victim A reported the March 2008 events, and a superceding indictment was handed up incorporating the original indictment as well as additional crimes pertaining to victim A. Following a jury trial, defendant was convicted of predatory sexual assault (three counts), and attempted rape in the first degree (three counts), criminal possession of a weapon in the first degree and grand larceny in the fourth degree. County Court sentenced defendant as a second felony offender to an aggregate prison term of 50 years to life. Defendant appeals, and we affirm.

We are unpersuaded by defendant's contention that he was deprived of his right to be present during sidebar interviews with prospective jurors ( see People v. Antommarchi, 80 N.Y.2d 247, 250, 590 N.Y.S.2d 33, 604 N.E.2d 95 [1992] ). At the beginning of jury selection, County Court invited prospective jurors and counsel to the bench to discuss general excuses. As this initial proceeding did not address potential bias “or otherwise present the potential for [defendant's] meaningful participation,” his presence was not required ( People v. Fabricio, 3 N.Y.3d 402, 406, 787 N.Y.S.2d 219, 820 N.E.2d 863 [2004];accord People v. Hampton, 64 A.D.3d 872, 875, 883 N.Y.S.2d 338 [2009],lv. denied13 N.Y.3d 796, 887 N.Y.S.2d 546, 916 N.E.2d 441 [2009] ). Nonetheless, the court advised defendant, “[Y]ou can approach or you can stay there, it's up to you” and then, in apparent response to a nonverbal signal from defendant or his counsel, stated, “He's waiving his presence, no problem.” A second sidebar conference, with jurors who said their lives had been affected by sexual assault, did present the issue of their potential bias, and thus defendant had a fundamental right to participate ( see People v. Antommarchi, 80 N.Y.2d at 250, 590 N.Y.S.2d 33, 604 N.E.2d 95). Before conducting these interviews, the court again invited counsel and defendant to approach and again apparently confirmed defendant's nonverbal response, stating, “You're waiving, not a problem. He waives.” Thereafter, defendant exercised his right to participate in the further sidebar juror interviews.

We agree that “the better practice would have been to state the substance of the right being waived” and obtain more explicit confirmation of defendant's waiver ( People v. Velasquez, 1 N.Y.3d 44, 49, 769 N.Y.S.2d 156, 801 N.E.2d 376 [2003] ). However, County Court's initial invitation to defendant to participate in the discussion of general excuses, although “broader than the law requires, ... necessarily included the rights guaranteed by Antommarchi ” ( People v. Williams, 15 N.Y.3d 739, 740, 907 N.Y.S.2d 740, 934 N.E.2d 309 [2010] ). Neither defendant nor his counsel objected when the court stated on the record that defendant was waiving his right to participate in the second sidebar conference, and nothing in the record calls into doubt the voluntary, intelligent and knowing character of this waiver ( see People v. Keen, 94 N.Y.2d 533, 538–539, 707 N.Y.S.2d 380, 728 N.E.2d 979 [2000];People v. Roberts, 80 A.D.3d 787, 790, 913 N.Y.S.2d 829 [2011],lvs. denied16 N.Y.3d 860, 862, 923 N.Y.S.2d 422, 424, 947 N.E.2d 1201, 1203 [2011] ). Accordingly, defendant did not meet his burden of demonstrating that he was wrongfully excluded ( see People v. Velasquez, 1 N.Y.3d at 49–50, 769 N.Y.S.2d 156, 801 N.E.2d 376;People v. Hampton, 64 A.D.3d at 875, 883 N.Y.S.2d 338;People v. Jackson, 296 A.D.2d 658, 659, 745 N.Y.S.2d 255 [2002],lv. denied98 N.Y.2d 768, 752 N.Y.S.2d 8, 781 N.E.2d 920 [2002] ).

Defendant next contends that the verdict was not supported by the weight of the evidence. Where, as here, a different verdict would not have been unreasonable, this Court must view the evidence in a neutral light and, “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. Romero, 7 N.Y.3d 633, 643, 826 N.Y.S.2d 163, 859 N.E.2d 902 [2006] [internal quotation marks and citations omitted]; see People v. Kruppenbacher, 81 A.D.3d 1169, 1174, 917 N.Y.S.2d 405 [2011],lv. denied17 N.Y.3d 797, 929 N.Y.S.2d 105, 952 N.E.2d 1100 [2011] ). Victim A testified that defendant invited her to his apartment, ostensibly to reimburse her for the cost of calls he had made to her cell phone. She stated that while two men who had given her a ride to the apartment waited in the car, defendant forced her into his bedroom, compelled her to perform various sexual acts and threatened to kill her, and that she eventually escaped by telling defendant that she would use the money he had given her for cell phone calls to purchase drugs for him. One of the men who drove victim A to the apartment testified that she was shaken up, trembling and scared when she emerged; the second man testified that victim A said that defendant had raped her and she was “tattered” and crying. The second man testified that he later asked defendant whether he had raped victim A, and defendant...