People v. McClendon

• Decision Date: 24 November 2021
• Docket Number: 108646
• Citation: 199 A.D.3d 1233,159 N.Y.S.3d 187
• Parties: The PEOPLE of the State of New York, Respondent, v. James MCCLENDON, Appellant.
• Court: New York Supreme Court — Appellate Division

199 A.D.3d 1233
159 N.Y.S.3d 187

The PEOPLE of the State of New York, Respondent,
v.
James MCCLENDON, Appellant.

108646

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

Calendar Date: October 15, 2021
Decided and Entered: November 24, 2021

159 N.Y.S.3d 188

Mitchell S. Kessler, Cohoes, for appellant, and appellant pro se.

P. David Soares, District Attorney, Albany (Vincent Stark of counsel), for respondent.

Before: Egan Jr., J.P., Clark, Aarons, Pritzker and Reynolds Fitzgerald, JJ.

MEMORANDUM AND ORDER

Aarons, J.

Appeal from a judgment of the Supreme Court (Breslin, J.), rendered July 6, 2016 in Albany County, upon a verdict convicting defendant of the crimes of sexual abuse in the first degree, criminal obstruction of breathing or blood circulation, assault in the third degree, endangering the welfare of a child (two counts) and coercion in the first degree.

In 2015, defendant was involved in an altercation with his then-girlfriend (hereinafter the victim) wherein he choked, struck and digitally penetrated her. The victim was eventually able to escape and call the police. Defendant, however, located the victim, told her that she "better not have called the police" and threatened to kill her. In connection with this incident, defendant was charged by indictment with sexual abuse in the first degree, criminal obstruction of breathing or blood circulation, assault in the third degree, two counts of endangering the welfare of a child and coercion in the first degree. A jury trial was held, after which defendant was convicted as charged. Defendant was sentenced, as a second violent felony offender, to a prison term of six years, to be followed by 10 years of postrelease supervision, for the conviction of sexual abuse in the first degree and to lesser concurrent terms of imprisonment for each misdemeanor conviction. Defendant was also sentenced to a prison term of 2 to 4 years for his conviction of coercion in the first degree, which was ordered to run consecutively to the other concurrent prison terms. An order of protection was also issued in favor of the victim. Defendant appeals.

Defendant first challenges his conviction of coercion in first degree as not being supported by legally sufficient evidence. As relevant here, the People were obligated to prove that defendant committed the crime of coercion in the second degree "by instilling in the victim a fear that he ... will cause physical injury to a person or cause damage to property" (Penal Law [former § 135.65(1)]). Under the version of the statute at the relevant time, a person is guilty of coercion in the second degree if he or she "induces a person ... to abstain from engaging in conduct in

159 N.Y.S.3d 189

which he or she has a legal right to engage ... by means of instilling in him or her a fear that, if the demand is not complied with, the actor or another will [c]ause physical injury to a person" (Penal Law [former § 135.60(1)]).

At trial, the victim testified that defendant got angry with her and then hit her on the head, slammed her to the ground and started to choke her. The victim's two youngest children heard the fight and the victim's cries and checked on the victim. Defendant told the victim to make them leave and also told the children that he would beat them if they did not leave. According to the victim, defendant continued to verbally berate her and then digitally penetrated her. After the victim's oldest child returned to the residence, defendant told the victim to go downstairs and take a shower because he wanted to have sexual intercourse.

The victim stated that she told defendant that she was going to take a shower but instead took her cell phone, tucked it in her shirt, went outside, walked down the street and called 911. The victim then spoke with the oldest child, who had called her, and informed her that she had contacted the police. As she was doing so, and walking to the location where she was to meet law enforcement, defendant ran behind her, snatched her phone and told her that she "better not have called the police." The victim testified that she denied having called the police. Defendant looked through the victim's cell phone but the call to 911 did not show in the outgoing calls. The victim stated that, as she and defendant were walking back to her residence, she did so slowly. Defendant then saw the police and, according to the victim, he remarked to her, "[You] better not." The victim testified that, as the police officers approached defendant, she slid away and informed them that defendant was going to beat her. Defendant was then taken away by the officers.

Defendant premises his legal sufficiency argument on the notion that, because the victim was able to call the police, the People failed to establish that he caused her to abstain from engaging in conduct that she was legally permitted to engage in due to fear of physical injury to her or another person. We agree. According to the count in the indictment charging defendant with coercion in the first degree, defendant compelled the victim "to abstain from utilizing her cell[ ]phone to call for help[ ] by means of instilling in her a fear that if the demand [was] not complied with, ... defendant would cause physical injury to a person." As defendant notes, the victim left the house and, in fact, called 911 on her cell phone. The victim was questioned as to why she did not call the police from the house. In response, the victim did not testify that she did not do so due to a fear that defendant would physically harm her or her...