People v. Marra

• Decision Date: 15 June 2012
• Citation: 2012 N.Y. Slip Op. 04899,96 A.D.3d 1623,946 N.Y.S.2d 783
• Parties: The PEOPLE of the State of New York, Respondent, v. Isidoro MARRA, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

96 A.D.3d 1623

946 N.Y.S.2d 783

2012 N.Y. Slip Op. 04899

The PEOPLE of the State of New York, Respondent,

v.Isidoro MARRA, Defendant–Appellant.

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

June 15, 2012.

Girvin & Ferlazzo, P.C., Albany (Salvatore D. Ferlazzo of Counsel), for Defendant–Appellant.

John H. Crandall, District Attorney, Herkimer (Jacquelyn M. Asnoe of Counsel), for Respondent.

PRESENT: SCUDDER, P.J., SMITH, FAHEY, LINDLEY, AND MARTOCHE, JJ.

MEMORANDUM:

On appeal from a judgment convicting him following a jury trial of rape in the first degree (Penal Law § 130.35[2] ), defendant contends that the verdict is against the weight of the evidence because the People failed to prove the element of penetration beyond a reasonable doubt. We reject that contention. The victim testifiedat trial that she had fallen asleep on a couch at an inn owned by defendant, after consuming multiple glasses of wine with her dinner. She further testified that, when she awoke, defendant was on top of her and his penis was inside her vagina. The victim's testimony was corroborated by the fact that defendant's DNA was found on the area between her vagina and anus. We also note that the victim was crying and hysterical when examined by medical personnel at the hospital shortly after the rape was reported to the police. When defendant was questioned by the police, he said that he had been drinking alcohol that night and did not “remember anything” about what happened with the victim. Defendant further stated that he had “no idea” how the events had transpired such that he was in the room where the victim was sleeping when the rape occurred. Toward the end of his police interview, defendant asked, “What if I can prove that [the victim] came on to me first,” thus suggesting that intercourse may have taken place as the victim had alleged. Finally, based on the evidence at trial, we discern no motive for the victim to make a false accusation against defendant, with whom she was acquainted and had no apparent grudges.

As defendant correctly notes, swabs taken from the victim's vagina at the hospital tested negative for defendant's sperm. The absence of defendant's sperm, however, is not necessarily inconsistent with the victim's claim of penetration because the victim testified that defendant did not ejaculate. More troubling is the absence of defendant's DNA on the swabs taken from the victim's vagina, inasmuch as a forensic scientist testified for the People at trial that it is “possible” for there to be a skin to skin transfer of DNA. Nevertheless, the forensic scientist did not testify that there is always a transfer of DNA from skin to skin contact, and no evidence to that effect was presented to the jury.

This case turned largely upon the credibility of the victim, and the jury evidently believed the victim's testimony that defendantinserted his penis into her vagina without her consent while she was asleep. We are cognizant of our duty to conduct an independent assessment of all of the proof as well as our authority to “substitute [our] own credibility determinations for those made by the jury in an appropriate case” ( People v. Delamota, 18 N.Y.3d 107, 116–117, 936 N.Y.S.2d 614, 960 N.E.2d 383). In our view, however, this is not an appropriate case in which to substitute our own credibility determinations, given that the victim's testimony was not riddled with inconsistencies or otherwise substantially impeached. “Sitting as the thirteenth juror ... [and] weigh[ing] the evidence in light of the elements of the crime as charged to the other jurors” ( People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we conclude that, although a different verdict would not have been unreasonable, it cannot be said that the jury failed to give the evidence the weight it should be accorded ( see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672;People v. Kalen, 68 A.D.3d 1666, 1666–1667, 890 N.Y.S.2d 877,lv. denied14 N.Y.3d 842, 901 N.Y.S.2d 148, 927 N.E.2d 569).

Defendant further contends that County Court improperly admitted in evidence photographs of the victim taken at the hospital. According to defendant, the People failed to lay an adequate foundation for their admission because the victim was not asked how she sustained the marks and bruises depicted therein and there was no evidence that the injuries depicted were caused by defendant. Defendant further contends that the potential for prejudice arising from the photographs outweighed their probative value. We conclude that defendant failed to preserve his present contentions for our review, because they differ from those raised before the trial court ( seeCPL 470.05[2]; People v. Major, 251 A.D.2d 999, 1000, 675 N.Y.S.2d 260,lv. denied92 N.Y.2d 927, 680 N.Y.S.2d 469, 703 N.E.2d 281;People v. Hobbs, 178 A.D.2d 1017, 578 N.Y.S.2d 773,lv. denied79 N.Y.2d 1002, 584 N.Y.S.2d 456, 594 N.E.2d 950). In his motion in limine, defendant sought to preclude the photographs on the ground that they were not timely turned over to the defense, and at trial he objected to the admission of the photographs generally and on the ground that there would be “no medical testimony indicating the length of time that those bruises were there from the time that they were initially inflicted.”

In any event, we conclude that the People did lay a proper foundation for admission in evidence of the photographs. “Properly authenticated photographs are admissible whenever relevant to describe the physical characteristics of a person, place, or thing” (Prince, Richardson on Evidence § 4–213, at 148–149 [Farrell 11th ed.] ). Photographs are properly authenticated when “a competent witness possessing knowledge of the matter” identifies the subject depicted therein and verifies that the photographs accurately represent the subject depicted ( People v. Byrnes, 33 N.Y.2d 343, 347, 352 N.Y.S.2d 913, 308 N.E.2d 435;see generally People v. Austin, 13 A.D.3d 1196, 1197, 786 N.Y.S.2d 882,lv. denied5 N.Y.3d 785, 801 N.Y.S.2d 805, 835 N.E.2d 665). Here, contrary to defendant's contention, the People laid a proper foundation for the admission of the photographs, inasmuch as the nurse who took them testified that the photographs accurately...