People v. McCloud

• Decision Date: 23 October 2014
• Docket Number: 102780.
• Court: New York Supreme Court — Appellate Division
• Parties: The PEOPLE of the State of New York, Respondent, v. Harold E. McCLOUD III, Appellant.

121 A.D.3d 1286
995 N.Y.S.2d 269
2014 N.Y. Slip Op. 07204

The PEOPLE of the State of New York, Respondent
v.
Harold E. McCLOUD III, Appellant.

102780.

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

Oct. 23, 2014.

995 N.Y.S.2d 272

Richard V. Manning, Parishville, for appellant.

Derek P. Champagne, District Attorney, Malone (Glenn MacNeill of counsel), for respondent.

Before: LAHTINEN, J.P., STEIN, McCARTHY, ROSE and DEVINE, JJ.

Opinion

McCARTHY, J.

121 A.D.3d 1286

Appeal from a judgment of the County Court of Franklin County (Main Jr., J.), rendered May 18, 2009, upon a verdict convicting defendant of the crimes of rape in the first degree, attempted assault in the second degree, grand larceny in the fourth degree, identity theft in the second degree, unlawful possession of personal identification information in the third degree, assault in the third degree (five counts), petit larceny (two counts), unlawful imprisonment in the second degree (two counts), criminal mischief in the fourth degree and menacing in the second degree.

Defendant was charged in a 21–count indictment with various crimes allegedly committed against his paramour. Following a jury trial, he was found guilty of 16 counts: rape in the first degree, attempted assault in the second degree, grand larceny in the fourth degree, identity theft in the second degree, unlawful possession of personal identification information in the third degree, assault in the third degree (five counts), petit larceny (two counts), unlawful imprisonment in the second degree (two counts), criminal mischief in the fourth degree and menacing in the second degree. County Court sentenced him to

995 N.Y.S.2d 273

an aggregate prison term of 18 years, followed by 20 years of postrelease supervision, as well as fines and restitution. Defendant appeals.

The conviction of rape in the first degree was not against the weight of the evidence. To establish that crime, the People were required to prove that defendant engaged in sexual intercourse with the victim by forcible compulsion (see Penal Law § 130.35[1] ). Forcible compulsion is defined to include physical force or a

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threat that “places a person in fear of immediate death or physical injury” (Penal Law § 130.00[8] ; see People v. Fulwood, 86 A.D.3d 809, 810, 927 N.Y.S.2d 246 [2011], lv. denied 17 N.Y.3d 952, 936 N.Y.S.2d 78, 959 N.E.2d 1027 [2011] ). In his statement to police, defendant admitted that he had sexual intercourse with the victim, but claimed that it was consensual. Therefore, the only element at issue was forcible compulsion. The victim testified that after a day filled with arguing and violence between them, defendant hit her head causing it to slam into a door, repeatedly punched her in the leg, refused to allow her to leave the bedroom, pushed her down on the bed, straddled her body, choked her to the point that she could not breathe, told her he was “going to make it hurt” and pinned her hands over her head. When he let go of her hands to pull her pants down, she scratched his face. He then put his penis into her vagina and continued to have sex despite her telling him no, to stop, and that she did not want to. After this incident, friends and family members noticed scratches on defendant's face or neck. The victim also testified about an incident approximately two weeks prior to the rape, during which defendant physically assaulted her numerous times. According due deference to the jury's credibility determinations, the evidence proved that defendant used physical force and caused the victim to fear further physical injury or death, thereby establishing the element of forcible compulsion (see People v. Blond, 96 A.D.3d 1149, 1151–1152, 946 N.Y.S.2d 663 [2012], lv. denied 19 N.Y.3d 1101, 955 N.Y.S.2d 556, 979 N.E.2d 817 [2012] ; People v. Fulwood, 86 A.D.3d at 810–811, 927 N.Y.S.2d 246 ). Thus, the rape conviction was not against the weight of the evidence.

The conviction of attempted assault in the second degree was also not against the weight of the evidence. To prove that crime, the People needed to show that defendant intended to cause serious physical injury to another person and “engage[d] in conduct which tend[ed] to effect the commission of such crime” (Penal Law § 110.00 ; see Penal Law § 120.05 [1 ] ). Attempted assault in the second degree can be proven without any serious physical injury or even any physical injury; “all that is required is that the defendant ‘intended such injury and engaged in conduct directed at accomplishing that objective’ ” (People v. Agron, 106 A.D.3d 1126, 1128, 964 N.Y.S.2d 694 [2013], lv. denied 21 N.Y.3d 1013, 971 N.Y.S.2d 495, 994 N.E.2d 391 [2013], quoting People v. Audi, 88 A.D.3d 1070, 1072, 931 N.Y.S.2d 418 [2011], lv. denied 18 N.Y.3d 856, 938 N.Y.S.2d 864, 962 N.E.2d 289 [2011] ; see People v. Johnson, 107 A.D.3d 1161, 1163, 967 N.Y.S.2d 217 [2013], lv. denied 21 N.Y.3d 1075, 974 N.Y.S.2d 324, 997 N.E.2d 149 [2013] ). Intent can be inferred from a defendant's conduct and the surrounding circumstances (see People v. Naradzay, 11 N.Y.3d 460, 467, 872 N.Y.S.2d 373, 900 N.E.2d 924 [2008] ; People v. Carte, 113 A.D.3d 191, 195, 976 N.Y.S.2d 594 [2013], lv. denied 23 N.Y.3d 1035, 993 N.Y.S.2d 248, 17 N.E.3d 503 [2014] ). In his statement to police, defendant said that after they had consensual sex, the victim became

995 N.Y.S.2d 274

agitated and he

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put his hand on her neck for a few seconds to calm her down. On the other hand, the victim testified that, prior to defendant forcibly having sex with her, he straddled her and placed both hands around her neck, squeezing so hard that she was unable to speak or breathe and her body felt “shaky” and “tingly.” She indicated that she came close to passing out, and that this incident was worse than the two choking incidents that occurred earlier that day (for which defendant was acquitted). A physician testified that when pressure is applied to the neck so that it prevents a person from breathing, such constriction can cause bruising and hemorrhaging, but can also cause loss of consciousness, brain damage, loss of memory, paralysis and even death. Considering the victim's testimony concerning defendant's violent conduct toward her before and after the choking,¹ the jury could reasonably have inferred that he intended to cause her serious physical injury. Giving deference to the jury's credibility findings, the conviction for attempted assault in the second degree is not against the weight of the evidence (see People v. Carte, 113 A.D.3d at 195, 976 N.Y.S.2d 594 ; People v. Bruno, 47 A.D.3d 1064, 1066, 849 N.Y.S.2d 701 [2008], lv. denied 10 N.Y.3d 809, 857 N.Y.S.2d 42, 886 N.E.2d 807 [2008] ).

The merger doctrine is inapplicable here. That doctrine prevents a conviction for kidnapping or a similar crime based on acts that are an integral part of another substantive crime, so as to preclude independent criminal liability (see People v. Gonzalez, 80 N.Y.2d 146, 153, 589 N.Y.S.2d 833, 603 N.E.2d 938 [1992] ; People v. Woodard, 93 A.D.3d 944, 948, 939 N.Y.S.2d 648 [2012] ). While the choking of the victim was one of the acts constituting the element of forcible compulsion for the rape count, it was also a discrete act that was not necessary for the commission of the rape and was an independent crime warranting separate punishment (see People v. Woodard, 93 A.D.3d at 948–949, 939 N.Y.S.2d 648 ).

County Court did not err in denying defendant's motion to sever certain counts of the indictment. While the counts charging defendant with the theft and use of the victim's debit card and camera were based on different criminal transactions than the counts related to the physical abuse he perpetrated on her, offenses are joinable in a single indictment if proof of one

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“would be material and admissible as evidence in chief upon a trial of the second” (CPL 200.20[2][b] ; see People v. Carter, 74 A.D.3d 1375, 1378, 903 N.Y.S.2d 172 [2010], lvs. denied 15 N.Y.3d 772, 907 N.Y.S.2d 460, 461, 933 N.E.2d 1053, 1054 [2010] ). Here, proof of the assault-based charges would be material and admissible at a trial on the theft-based charges, as Molineux evidence to prove defendant's motive, intent and lack of mistake, as well as the nature of the parties' relationship (see People v. Washpun, 134 A.D.2d 858, 858, 521 N.Y.S.2d 915 [1987], lv. denied 70 N.Y.2d 1012, 526 N.Y.S.2d 946, 521 N.E.2d 1089 [1988] ; see also People v. Ivy, 217 A.D.2d 948, 949, 630 N.Y.S.2d 820 [1995], lv. denied

995 N.Y.S.2d 275

86 N.Y.2d 843, 634 N.Y.S.2d 452, 658 N.E.2d 230 [1995] ). As the offenses were joinable under the statute, the court properly denied the severance motion (see People v. Lane, 56 N.Y.2d 1, 7, 451 N.Y.S.2d 6, 436 N.E.2d 456 [1982] ).

Defendant was not deprived of a fair trial by the testimony of the People's expert. The expert was...