People v. Johnson
| Decision Date | 05 August 1993 |
| Citation | 196 A.D.2d 408,601 N.Y.S.2d 103 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Emanuel JOHNSON, Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
Before SULLIVAN, J.P., and MILONAS, ELLERIN and KASSAL, JJ.
Judgment, Supreme Court, Bronx County (Frank Diaz, J.), rendered July 27, 1990, convicting defendant, after a jury trial, of rape in the first degree and sodomy in the first degree, and sentencing him, as a persistent violent felony offender to two concurrent indeterminate terms of imprisonment of from 25 years to life, unanimously modified, on the law, to vacate the sentence and remand for resentencing and, except as thus modified, affirmed.
Convicted of raping and sodomizing his twenty-one year-old great niece, defendant argues that the conviction is not supported by the evidence, in that no witnesses were produced who heard the complainant's screams, that DNA testing was not performed to determine the source of the spermatozoa found in the complainant's vagina, and that the investigating police officers never entered the apartment to search for drops of blood that would necessarily have spilled from defendant's wound after the complainant struck him with a can of insect repellent. None of these arguments detract from the sufficiency of the evidence. A one-witness case is not, by definition, suspect; there were no pronounced discrepancies in the complainant's testimony to call her veracity into question and no viable issue was raised as to identity. The bump on the complainant's head, the presence of sperm in her vagina, and her distraught and nearly hysterical demeanor upon the arrival of the police officers amply supported her testimony.
Defendant's present contentions with respect to the prosecutor's comments during summation are unpreserved for appellate review. Were we to reach these issues in the interest of justice, we would find no error. The prosecutor's remarks were responsive to those made by defense counsel, and were within the broad bounds of permissible rhetorical comment. As for defendant's mandatory sentence as a persistent violent felony offender, the record shows that in 1985 he was sentenced as a second violent felony offender when he pleaded guilty to possession of a weapon and admitted the allegations of the predicate violent felony statement filed by the People with respect to an earlier 1975 conviction. The argument that the 1975 conviction was not for a violent felony offense is thus precluded by CPL 400.15(8), which provides that a predicate violent felony conviction finding "shall be binding upon that defendant in any future proceeding in which the issue may arise." (See, People v. Cole, 165 A.D.2d 737, 564 N.Y.S.2d 263, lv. denied 76 N.Y.2d 1020, 565 N.Y.S.2d 770, 566 N.E.2d 1175.)
The problem with the use of the 1975 conviction as a predicate for a persistent violent felony offender sentence is...
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