People v. Horton

• Decision Date: 05 March 2020
• Docket Number: 110708
• Parties: The PEOPLE of the State of New York, Respondent, v. Jeffrey L. HORTON, Appellant.
• Court: New York Supreme Court — Appellate Division

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The PEOPLE of the State of New York, Respondent,
v.
Jeffrey L. HORTON, Appellant.

110708

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

Calendar Date: January 9, 2020
Decided and Entered: March 5, 2020

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Danielle Neroni Reilly, Albany, for appellant.

Matthew Van Houten, District Attorney, Albany (Andrew J. Bonavia of counsel), for respondent.

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

MEMORANDUM AND ORDER

Garry, P.J.

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Appeal from a judgment of the Supreme Court (Cassidy, J.), rendered November 9, 2018 in Tompkins County, upon a verdict convicting defendant of the crimes of burglary in the first degree, rape in the first degree, criminal sexual act in the first degree, aggravated sexual abuse in the third degree, sexual abuse in the first degree, assault in the third degree, stalking in the third degree, stalking in the fourth degree and menacing in the third degree.

In March 2015, defendant entered the victim's home and subjected her to physical and sexual assaults. He was tried by a jury and convicted of multiple felonies. Upon his appeal, this

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Court reversed and remitted the matter for a new trial (

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162 A.D.3d 1118, 78 N.Y.S.3d 748 [2018] ). Following a second jury trial, defendant was convicted of burglary in the first degree, rape in the first degree, criminal sexual act in the first degree, aggravated sexual abuse in the third degree, sexual abuse in the first degree, assault in the third degree, stalking in the third degree, stalking in the fourth degree and menacing in the third degree. Supreme Court sentenced defendant to consecutive prison terms of five years on the conviction for burglary in the first degree, with five years of postrelease supervision, and seven years on the conviction for rape in the first degree, with five years of postrelease supervision, and to lesser concurrent terms on the remaining convictions. Defendant appeals.

Defendant asserts that his burglary and assault convictions are against the weight of the evidence because the People failed to prove that the victim sustained the requisite physical injury, and that his sex offense convictions are against the weight of the evidence because the victim's testimony was not credible. The victim testified that she had ended a romantic relationship with defendant shortly before the attack. In the next several days, defendant called her repeatedly, sent her multiple text messages and appeared at her workplace and in her home, disregarding her repeated requests to leave her alone. The victim stated that, on the night of the attack, she awoke to find defendant in her bedroom. When she asked what he was doing there, he said that he had entered through a dog door in the attached garage and that she should have locked all of her doors. He said that he had just wanted to talk to her, complained that she had not answered his messages, warned her that he had taken two Viagra pills on the way over and said that she was "gonna get it." The victim testified that defendant jumped on top of her, hit her repeatedly in the face and head and tied her wrists together behind her back with a nylon rope that had been stored in her laundry room. Thereafter, despite the victim's protests, he penetrated her vaginally and anally with a vibrator and with his penis, while threatening to kill her if she tried to fight back. Afterward, according to the victim, defendant noticed that her face was red and swollen. He became upset, paced back and forth talking about how to "get out of this," mentioned killing himself, and finally asked the victim if she would agree to tell no one about the sexual assault if he turned himself in for the physical assault. He untied her and left, saying that he was going to the police station.

The victim testified that she had not authorized defendant to enter her home and did not consent to any part of the sexual

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assault. She reported the physical assault to police immediately after the attack and was treated at the emergency room for her physical injuries. However, she did not report the sexual assault until a day later. She then gave a second statement to police and was examined by a sexual assault nurse examiner. The victim said that, after the attack, she experienced dizziness, headaches, soreness and pain all over her body. Police officers and medical personnel testified that she had significant bruising and swelling on her face, head and other parts of her body, a bite mark on one finger and ligature marks on one wrist. Photographs depicting these injuries were admitted. Her treating physician testified that she diagnosed the victim with postconcussion syndrome, with symptoms of dizziness, sensitivity to light, headaches and impaired concentration. The victim was prescribed several medications, including a painkiller, and was unable to return to work for more than a month.

Defendant did not testify, but his testimony from the prior trial was admitted

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into evidence. In that testimony, he acknowledged that he had entered the victim's home without permission, claiming that he had used an unlocked back door. He asserted that, when he first appeared in the bedroom, he and the victim had a calm conversation about the end of their relationship, but that the victim suddenly hit him in the mouth when he made a comment that upset her. He stated that he "reacted" by backhanding her, straddling her and then "slapp[ing]" her in the head and face for 10 or 15 seconds. He stated that he pinned her down on the bed, but denied that he tied her wrists. According to defendant, he then attempted to leave, but the victim invited him to stay and have sex with her, which he did. Thereafter, he left, turned himself in to the police and gave a statement in which he admitted that he had "punched or slapped" the victim. A subsequent search of his cell phone revealed that he conducted Internet searches for information on state laws regarding assault, battery and sodomy, and sent a text message to his sister directing her not to tell anyone that he and the victim had "made love" because he could be charged with rape.

If the jury had credited defendant's assertions that the victim consented to sexual activity with defendant and that her injuries were less severe than she claimed, a different verdict would not have been unreasonable. Thus, 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 whether the trier of fact accorded proper weight to the evidence" (

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People v. Cooley, 149 A.D.3d 1268, 1269, 52 N.Y.S.3d 528 [2017] [internal quotation marks and citation omitted], lvs denied 30 N.Y.3d 979, 981, 67 N.Y.S.3d 581, 583, 89 N.E.3d 1261, 1263 [2017] ; see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). "The conflicting testimony ... presented ‘a classic he-said she-said credibility determination’ for the jury to resolve" ( People v. Kiah, 156 A.D.3d 1054, 1056, 67 N.Y.S.3d 337 [2017], lvs denied 31 N.Y.3d 981, 984, 77 N.Y.S.3d 659, 662, 102 N.E.3d 436, 439 [2018], quoting People v. McCray, 102 A.D.3d 1000, 1000, 958 N.Y.S.2d 511 [2013], affd 23 N.Y.3d 193, 989 N.Y.S.2d 649, 12 N.E.3d 1079 [2014] ). Deferring to that determination and viewing the evidence in a neutral light, we find that the challenged convictions are not against the weight of the evidence (see People v. Horton, 162 A.D.3d at 1119–1120, 78 N.Y.S.3d 748 ; People v. Hines, 9 A.D.3d 507, 511, 780 N.Y.S.2d 419 [2004], lv denied 3 N.Y.3d 707, 785 N.Y.S.2d 34, 818 N.E.2d 676 [2004] ).

Supreme Court properly denied defendant's motion in limine seeking to preclude the People from eliciting testimony that the victim took measures to improve the security of her home after the attack. Contrary to defendant's claim, this testimony did not constitute bolstering of any kind (compare People v. Smith, 22 N.Y.3d 462, 465–466, 982 N.Y.S.2d 809, 5 N.E.3d 972 [2013] ; People v. Holt, 67 N.Y.2d 819, 821, 501 N.Y.S.2d 641, 492 N.E.2d 769 [1986] ). The court likewise properly denied defendant's request for records of the victim's mental health counseling and her purported history of substance abuse. When a witness has a history of treatment for a diagnosed mental health condition, in camera review may be warranted "to determine whether [mental health records] contain relevant and material information bearing on the credibility of the witness that ought to be disclosed to the defendant" ( People v. Kiah, 156 A.D.3d at 1057, 67 N.Y.S.3d 337 ). However, such confidential records are not released "where sought as a fishing expedition

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searching for some means of attacking the victim's credibility" ( People v. McCray, 102 A.D.3d at 1005, 958 N.Y.S.2d 511...