People v. Lancaster

• Decision Date: 20 October 2016
• Citation: 2016 N.Y. Slip Op. 06904,143 A.D.3d 1046,41 N.Y.S.3d 129
• Parties: The PEOPLE of the State of New York, Respondent, v. Thomas J. LANCASTER, Appellant.
• Court: New York Supreme Court — Appellate Division

143 A.D.3d 1046

41 N.Y.S.3d 129

2016 N.Y. Slip Op. 06904

The PEOPLE of the State of New York, Respondent,

v.Thomas J. LANCASTER, Appellant.

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

Oct. 20, 2016.

Randolph V. Kruman, Cortland, for appellant, and appellant pro se.

Robert M. Carney, District Attorney, Schenectady (Hannah E.C. Moore, New York Prosecutors Training Institute, Inc., Albany, of counsel), for respondent.

Before: PETERS, P.J., McCARTHY, GARRY, ROSE and MULVEY, JJ.

MULVEY, J.

Appeal from a judgment of the County Court of Broome County (Smith, J.), rendered March 14, 2013, upon a verdict convicting defendant of the crimes of criminal sexual act in the first degree (two counts), rape in the first degree, aggravated sexual abuse in the first degree and predatory sexual assault.

Defendant was charged in a nine-count indictment with three counts of criminal sexual act in the first degree, two counts of rape in the first degree, three counts of aggravated sexual abuse in the first degree and predatory sexual assault, stemming from allegations that he sexually assaulted five victims at various times and locations throughout Broome County. Following a jury trial, defendant was convicted of two counts of criminal sexual act in the first degree with respect to one victim (hereinafter victim 1) and rape in the first degree and aggravated sexual abuse in the first degree with respect to a second victim (hereinafter victim 2). Defendant was also convicted of one count of predatory sexual assault. County Court thereafter sentenced defendant to an aggregate prison term of 40 years to life. Defendant now appeals.

Defendant argues that the verdict was not supported by legally sufficient evidence and was against the weight of the evidence. Initially, we note that, “by failing to make a timely detailed motion to dismiss directed at the specific deficiencies in the evidence” (People v. Barringer, 54 A.D.3d 442, 443, 862 N.Y.S.2d 214 [2008], lvs. denied 11 N.Y.3d 830, 836, 868 N.Y.S.2d 604, 610, 897 N.E.2d 1088, 1094 [2008] ), or by failing to renew such a motion after the close of his proof, defendant failed to preserve his challenge to the legal sufficiency of the evidence (see People v. Keener, 138 A.D.3d 1162, 1162–1163, 30 N.Y.S.3d 345 [2016], lv. denied 27 N.Y.3d 1134, 39 N.Y.S.3d 116, 61 N.E.3d 515 [2016] ; People v. Farnham, 136 A.D.3d 1215, 1215, 26 N.Y.S.3d 378 [2016], lv. denied 28 N.Y.3d 929, 40 N.Y.S.3d 357, 63 N.E.3d 77 [2016] ). “Although defendant's present challenge to the legal sufficiency of the evidence is unpreserved for our review, our weight of the evidence review necessarily involves an evaluation of whether all elements of the charged crime[s] were proven beyond a reasonable doubt at trial” (People v. Jones, 136 A.D.3d 1153, 1156, 26 N.Y.S.3d 363 [2016] [internal quotation marks and citation omitted], lv. dismissed 27 N.Y.3d 1000, 38 N.Y.S.3d 109, 59 N.E.3d 1221 [2016] ). “Where ... 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. Olsen, 124 A.D.3d 1084, 1085–1086, 1 N.Y.S.3d 555 [2015] [internal quotation marks and citations omitted], lv. denied 26 N.Y.3d 933, 17 N.Y.S.3d 96, 38 N.E.3d 842 [2015] ; see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ; People v. Simmons, 111 A.D.3d 975, 979–978, 974 N.Y.S.2d 185 [2013], lv. denied 22 N.Y.3d 1203, 986 N.Y.S.2d 423, 9 N.E.3d 918 [2014] ). “Issues of credibility and the weight to accord testimony are matters to be resolved by the trier of fact, who is free to accept or reject any part of the testimony presented” (People v. Rosa, 57 A.D.3d 1018, 1019, 868 N.Y.S.2d 812 [2008] [citations omitted], lv. denied 12 N.Y.3d 762, 876 N.Y.S.2d 713, 904 N.E.2d 850 [2009] ; see People v. Beliard, 101 A.D.3d 1236, 1239, 956 N.Y.S.2d 234 [2012], lv. denied 20 N.Y.3d 1096, 965 N.Y.S.2d 791, 988 N.E.2d 529 [2013] ).

With respect to the charge of criminal sexual act in the first degree, the People had to prove that defendant “engage[d] in oral sexual conduct or anal sexual conduct with another person” by “forcible compulsion” (Penal Law § 130.50[1] ). Victim 1 testified that defendant forced her to perform oral sex against her will. Thereafter, defendant forced her to have anal sex. According to victim 1, she was screaming and begging for defendant to stop, but he held her down. For the charge of rape in the first degree, the People were required to prove that defendant “engage[d] in sexual intercourse with another person” by “forcible compulsion” (Penal Law § 130.35 [1 ] ). Victim 2 testified that defendant forced her onto her hands and knees and forcibly had sexual intercourse with her. She was terrified of defendant and did as he demanded. With respect to the charge of aggravated sexual abuse in the first degree, the People had to prove that defendant “insert[ed] a foreign object in the vagina ... of another person causing physical injury ... [b]y forcible compulsion” (Penal Law § 130.70[1] [a] ). With respect to this charge, victim 2's testimony was that defendant forcibly inserted a foreign object into her vagina, despite the fact that she pushed him away and screamed in pain. In her testimony, the victim described physical injuries suffered as a result of this incident. A nurse practitioner also testified and described her findings upon physical examination, which were consistent with the victim's descriptions.

Finally, to establish a conviction for predatory sexual assault as charged in the indictment, the People were required to prove that defendant “commit [ted] the crime of rape in the first degree, criminal sexual act in the first degree, [or] aggravated sexual abuse in the first degree ... and ... [h]e ... has engaged in conduct constituting [such crimes] against one or more additional persons” (Penal Law § 130.95[2] ). On appeal, defendant argues that County Court failed to explain the “temporal implications” of the statute. We reject this argument since, here, County Court specified that the jury first had to “[find] ... defendant guilty beyond a reasonable doubt of either criminal sexual act in the first degree, rape in the first degree or aggravated sexual abuse in the first degree against one alleged victim” and, second, find defendant guilty of one of those crimes against “a different, separate victim.” County Court's instructions made clear that the jury had to preliminarily find defendant guilty of one of the enumerated crimes before finding him guilty of one of the same crimes against a separate, subsequent victim, thus addressing the inherent “temporal implications” of the predatory sexual assault statute. Based on the record before us, the evidence has demonstrated that defendant has committed one or more of the enumerated crimes against multiple victims—victim 1 and victim 2. Defendant's argument is thus unavailing and the verdict need not be disturbed on this basis.

Defendant's acquittal of these crimes would have been reasonable, since the jury could have credited defendant's testimony that the encounters with both victims were consensual and deemed that the testimony of the victims was unworthy of belief. However, weighing the evidence in a neutral light and deferring to the jury's credibility assessments, we find that, based on the record before us, the weight of the admissible evidence amply supports the convictions (see People v. Scaringe, 137 A.D.3d 1409, 1416, 27 N.Y.S.3d 712 [2016], lv. denied 28 N.Y.3d 936, 40 N.Y.S.3d 364, 63 N.E.3d 84 [2016] ; People v. Farnham, 136 A.D.3d at 1216–1217, 26 N.Y.S.3d 378 ; People v. Thiel, 134 A.D.3d 1237, 1239–1240, 21 N.Y.S.3d 745 [2015], lv. denied 27 N.Y.3d 1156, 39 N.Y.S.3d 389, 62 N.E.3d 129 [2016] ).

We turn next to defendant's claim that a second search of his home, which turned up the foreign object, was unlawful. Prior to defendant's arrest, a search warrant was issued authorizing law enforcement to search defendant's home for certain physical evidence including, among other things, the foreign object used during the commission of some of the alleged crimes. At the suppression hearing, William Hannigan, an investigator with the State Police, testified that, on January 27, 2012, he arrived at defendant's home to execute the search warrant and take defendant into custody. Fred Fraley, defendant's brother, was in the driveway of defendant's home when Hannigan arrived. G. Frederick Goodall, a senior investigator with the State Police, testified that he supervised and participated in the execution of the search warrant of defendant's home, and the search team did not recover the foreign object on that date. On February 1, 2012, Fraley informed the State Police that he had discovered an item that was listed on the search warrant—specifically, the foreign object—that the State Police had not found during the January 27, 2012 search. Goodall went to defendant's home and spoke with Fraley, who showed Goodall where he had located the item. Goodall photographed the item, which was located in a suitcase in a cluttered room, and took it as evidence. Goodall stated that he knew it was not Fraley's home, but also knew that, at the time the search warrant was executed, defendant had given Fraley permission to take his son and leave officers in control of the house, so he assumed that Fraley's permission lasted “right on through.” Goodall's understanding was that Fraley had “control of [the house] until [defendant] gets out of jail[;] therefore, he can turn something over to us, if he finds it.” Fraley testified that he was present at defendant's home during the execution of the search warrant and had returned to defendant's home, after defendant's arrest, and began packing and cleaning up for him, per defendant's...