People v. Irving

• Decision Date: 24 January 1985
• Citation: 107 A.D.2d 944,484 N.Y.S.2d 354
• Parties: The PEOPLE of the State of New York, Respondent, v. Deborah A. IRVING, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 354

484 N.Y.S.2d 354

107 A.D.2d 944

The PEOPLE of the State of New York, Respondent, v. Deborah A. IRVING, Appellant.

Supreme Court, Appellate Division,

Third Department.

Jan. 24, 1985.

Edward J. Kennedy, Albany, for appellant.

Sol Greenberg, Albany County Dist. Atty., Albany (George H. Barber, Asst. Dist. Atty., Albany, of counsel), for respondent.

Before MAHONEY, P.J., and WEISS, MIKOLL, YESAWICH and HARVEY, JJ.

MEMORANDUM DECISION.

Appeal from a judgment of the County Court of Albany County, rendered June 8, 1983, upon a verdict convicting defendant of the crimes of rape in the first degree (one count), attempted sodomy in the first degree (two counts) and robbery in the second degree (one count).

Defendant, along with two others, was charged in a four-count indictment with rape in the first degree, sodomy in the first degree, attempted sodomy in the first degree and robbery in the second degree. The charges emanated from an attack on one Mary Walker on March 15, 1983 in the City of Albany, the underlying facts of which are set forth in our previous decision concerning one of the codefendants (see People v. Allsbrook, 103 A.D.2d 983, 479 N.Y.S.2d 827, vacated on rearg. 105 A.D.2d 467, 480 N.Y.S.2d 787 ). Defendant was tried and convicted as indicated above and was sentenced to several consecutive indeterminate sentences. This appeal ensued.

Defendant initially contends that the verdict was against the weight of the trial evidence. She challenges the credibility of both the victim and the witness, Linda Fitzpatrick, particularly as to identification, and asserts that the medical evidence failed to demonstrate the occurrence of a sexual assault. We disagree. Upon review, the verdict must be considered in a light most favorable to the People (People v. Kennedy, 47 N.Y.2d 196, 203, 417 N.Y.S.2d 452, 391 N.E.2d 288). Credibility of the witnesses is within the jury's exclusive domain (People v. Cummings, 90 A.D.2d 622, 623, 456 N.Y.S.2d 236; see, also, People v. Bigelow, 106 A.D.2d 448, 482 N.Y.S.2d 541 ). Contrary to defendants contention in her brief, there is medical testimony confirming the presence of sperm on the victim's clothing. This fact, coupled with the victim's own testimony, provides ample basis to establish the occurrence of a sexual attack. The identification issue has already been reviewed in our decision in People v. Allsbrook, supra, 105 A.D.2d 467, 480 N.Y.S.2d 787 where we concluded that the evidence on identity was neither ambiguous nor equivocal. In view of this finding and defendant's failure to raise an objection at trial, her primary contentions of improper bolstering of the victim's identification testimony and inadequacy of the jury charge on identification have not been preserved for our review. In any event, "the evidence of identity was not weak or equivocal, the bolstering testimony was not prejudicial (citation omitted) and the trial court's charge on this point was adequate" (id. at 468, 480 N.Y.S.2d 787). Moreover, even assuming, arguendo, that the pretrial identification procedures at the Yanas bar were unduly suggestive, the record confirms an independent basis for the victim's in-court identification untainted by any improper conduct (see People v. Ballott, 20 N.Y.2d 600, 286 N.Y.S.2d 1, 233 N.E.2d 103; People v. Bell, 94 A.D.2d 894, 463 N.Y.S.2d 646, affd. 63 N.Y.2d 796, 481 N.Y.S.2d 324, 471 N.E.2d 137; People v. Miller, 74 A.D.2d 961, 425 N.Y.S.2d 895; see, also, People v. Smith, 63 A.D.2d 754, 404 N.Y.S.2d 746). Clearly, there was ample basis in the record to support the verdict.

Defendant's remaining contentions of error are equally unavailing. Probable cause for the arrest was readily established from Walker's description of the attack and Fitzpatrick's pursuit of the assailants to the nearby Yanas...