People v. Kiah

• Decision Date: 14 December 2017
• Docket Number: 107723
• Citation: 156 A.D.3d 1054,67 N.Y.S.3d 337
• Parties: The PEOPLE of the State of New York, Respondent, v. Kalvin KIAH, also known as Black, Appellant.
• Court: New York Supreme Court — Appellate Division

156 A.D.3d 1054

67 N.Y.S.3d 337

The PEOPLE of the State of New York, Respondent,

v.Kalvin KIAH, also known as Black, Appellant.

107723

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

Calendar Date: October 16, 2017

Decided and Entered: December 14, 2017

John Ferrara, Monticello, for appellant.

P. David Soares, District Attorney, Albany (Michael C. Wetmore of counsel), for respondent.

Before: Garry, J.P., Egan Jr., Rose, Mulvey and Rumsey, JJ.

MEMORANDUM AND ORDER

Rumsey, J.

Appeal from a judgment of the Supreme Court (Breslin, J.), rendered June 3, 2015 in Albany County, upon a verdict convicting defendant of the crime of rape in the first degree.

On July 30, 2014, the female victim invited defendant, whom she had known for approximately one year, to visit her apartment. After defendant arrived at approximately 9:30 p.m., they smoked crack cocaine, which defendant had brought with him, and engaged in sexual intercourse. The following morning, the victim contacted the police to report that she had been raped. Defendant was ultimately charged by indictment with rape in the first degree, criminal sexual act in the first degree and criminal sale of a controlled substance in the third degree. Upon a jury trial, defendant was convicted of rape in the first degree and acquitted of the remaining charges. He was sentenced as a second felony offender to a prison term of 15 years, with 15 years of postrelease supervision. Defendant now appeals.

Defendant first argues that the verdict was against the weight of the evidence. "In an analysis of whether a verdict is against the weight of the evidence, we first determine whether a different finding would not have been unreasonable, and, if not, we then 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. This analysis entails viewing the evidence in a neutral light and giving deference to the jury's credibility assessments" ( People v. Cooley, 149 A.D.3d 1268, 1269, 52 N.Y.S.3d 528 [2017] [internal quotation marks and citations omitted], lvs denied 30 N.Y.3d 979, 981, 67 N.Y.S.3d 581, 89 N.E.3d 1261 [2017] ). As relevant here, "a person is guilty of rape in the first degree when he or she engages in sexual intercourse with another person ... [b]y forcible compulsion" ( Penal Law § 130.35[1] ). " ‘Forcible compulsion’ means to compel by ... use of physical force" ( Penal Law § 130.00[8][a] ).

At trial, the victim testified that she became "high" after she and defendant smoked crack cocaine in the kitchen. She recalled that she became uncomfortable in the presence of defendant, who was drinking beer at the kitchen table, because he made "[s]exual gestures" and repeatedly stated a desire to have sexual intercourse with her. The victim testified that she told him no and asked him to leave her apartment, but admitted that when defendant asked her if he could "suck on [her] breasts," she allowed him to do so with the hope that he would then leave. The victim stated that defendant then carried her from the kitchen into the living room and, when she asked him to put her down, he stated that "he was taking what was his." According to the victim, defendant then placed her on a couch in the living room and restrained her while engaging in certain sexual contact, including vaginal intercourse, notwithstanding the fact that she "yell[ed]" at him to stop at least six times. She estimated that the rape lasted for 10 or 15 minutes and testified that, after using the bathroom, defendant left her residence, but returned a few minutes later to retrieve some money he had left. The victim stated that she sent a text message to defendant the following day stating, "What you did was wrong, and you know it was, I asked you to stop ... [eight] times, dude," and he replied, "Okay, apologize, apologize, okay, end of it." A photograph of the victim's cell phone screen showing the victim's text message and defendant's response was admitted into evidence. On cross-examination, the victim admitted that she had previously abused crack cocaine, opiates and heroin and that she was taking medication for bipolar disorder at the time of the incident, which she had been advised could impair her thinking, especially if combined with illicit drugs like crack cocaine. The police officer who interviewed the victim on the day after the incident testified that she was visibly upset, crying and agitated. The nurse who performed a sexual assault examination on the victim on the day after the incident testified that the victim was "[t]earful at times," and that the victim had an abrasion on her right knee, but no other injuries.

Defendant also testified at trial. He stated that when the victim invited him to her apartment, she requested that he bring crack cocaine. He admitted that he had sexual intercourse with the victim at her apartment on the day in question, but stated that it was consensual and had been initiated by the victim; he specifically testified that she never told him to stop and that he did not hold her down. According to defendant, the victim then asked if he could obtain more crack cocaine; after he responded that he could not, she became belligerent and he left her apartment. When he returned to her apartment to retrieve his money—which he needed for bus fare—the victim allowed him to enter and retrieve the money and again asked if he could obtain more crack cocaine. Defendant admitted receiving the victim's text message, and testified that he understood it as a complaint that he could not obtain more crack cocaine, for which he apologized. Defendant testified that he lied when he was interviewed subsequent to his arrest on August 1, 2014—by denying being in the county where the rape occurred or knowing the victim—because he was scared. The conflicting testimony of the victim and defendant presented "a classic he-said she-said credibility determination" for the jury to resolve ( 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] ), and, although a different verdict would not have been unreasonable, we accord deference to the jury's determination that the victim's testimony was more credible than that of defendant and conclude that the weight of the evidence supports the verdict.

Defendant next contends that Supreme Court erred when it denied his motion seeking a subpoena duces tecum compelling production of the victim's mental health treatment records for in camera review, which he sought as a possible basis for challenging the victim's credibility. "In general, mental health records are confidential and will not be discoverable where sought as a fishing expedition searching for some means of attacking the victim's credibility. Access will be provided, however, where a defendant can demonstrate a good faith basis for believing that the records contain data relevant and material to the determination of guilt or innocence, a decision which will rest largely on the exercise of a sound discretion by the trial court" ( id. at 1005, 958 N.Y.S.2d 511 [internal quotation marks and citations omitted] ). In that regard, a history of treatment for a diagnosed mental condition is a sufficient...