People v. Morgan

• Decision Date: 19 November 1985
• Citation: 496 N.Y.S.2d 401,487 N.E.2d 258,66 N.Y.2d 255
• Parties: , 487 N.E.2d 258 The PEOPLE of the State of New York, Appellant, v. Michael MORGAN, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 401

496 N.Y.S.2d 401

66 N.Y.2d 255, 487 N.E.2d 258

The PEOPLE of the State of New York, Appellant, v. Michael MORGAN, Respondent.

Court of Appeals of New York.

Nov. 19, 1985.

Stephen F. Lungen, Dist. Atty., for appellant.

Keith Geoffrey Ingber, Monticello, for respondent.

OPINION OF THE COURT

ALEXANDER, Judge.

When the circumstantial evidence in this case is viewed in a light most favorable to the prosecution, as we are required to do on this appeal (People v. Kennedy, 47 N.Y.2d 196, 417 N.Y.S.2d 452, 391 N.E.2d 288; People v. Benzinger, 36 N.Y.2d 29, 32, 364 N.Y.S.2d 855, 324 N.E.2d 334), and the prosecution is given the benefit of every reasonable inference to be drawn therefrom (People v. Lewis, 64 N.Y.2d 1111 1112, 479 N.Y.S.2d 802, People v. Way, 59 N.Y.2d 361, 365, 465 N.Y.S.2d 853, 452 N.E.2d 1181; People v. Montanez, 41 N.Y.2d 53, 57, 390 N.Y.S.2d 861, 359 N.E.2d 371), the facts from which the inference of defendant's guilt is drawn, when perceived as a whole, overwhelmingly establish his guilt beyond a reasonable doubt, are inconsistent with his innocence and exclude to a moral certainty every other reasonable hypothesis (see, People v. Lewis, supra; People v. Way, supra; People v. Barnes, 50 N.Y.2d 375, 380, 429 N.Y.S.2d 178, 406 N.E.2d 1071; People v. Montanez, supra; People v. Benzinger, supra ). Although the prosecutor's comments during summation went beyond the limits of propriety, in light of the overwhelming evidence of guilt, we hold that this error is harmless and that defendant was not deprived of a fair trial thereby (see, People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787; People v. Brosnan, 32 N.Y.2d 254, 344 N.Y.S.2d 900, 298 N.E.2d 78; People v. Roopchand, 65 N.Y.2d 837, 493 N.Y.S.2d 128, 482 N.E.2d 924). Consequently, the order of the Appellate Division, 105 A.D.2d 554, 481 N.Y.S.2d 494, should be reversed and the case remitted to that court for consideration of the facts and issues not reached.

Defendant and codefendant Kevin Postell ^* were indicted on various charges of rape, sodomy, sexual abuse and burglary arising from an incident that occurred on December 8, 1981, when the complainant was attacked in her apartment which she shared with her boyfriend in Mountaindale, New York. At approximately 6:30 p.m. on that date, when she opened the apartment door in response to a knock, two men wearing stocking masks pushed their way in, pressed a knife against her neck and proceeded to rape her and sodomize her. She reported that after the assailants left, a half ounce of marihuana and a purple pouch containing collector's coins were missing from the apartment.

Approximately 20 minutes prior to the attack, the complainant had received a telephone call from defendant, whom she knew through her boyfriend. Defendant asked to speak to the boyfriend about a possible purchase of marihuana. Complainant recognized defendant's voice from prior conversations, and advised him that her boyfriend was not at home.

There were no lights on in the apartment during the attack, but complainant was able to describe her attackers by their contrasting height and build. She described them as a big one, who was tall and stocky, and a smaller one, who was shorter and had a slim frame. These descriptions fairly reflected the relative sizes and builds of defendant Morgan and his codefendant. (Defendant fits the description of the "smaller one".) Complainant was able to determine accurately that her attackers were black. She also testified that while being violated by Postell, she heard defendant rummaging through the apartment, and at one point he demanded to know where the marihuana was kept. She was not able to identify defendant by his voice, however, because the "smaller one" spoke in an unnaturally deep voice, apparently in an attempt to disguise it.

Defendant and Postell were placed at the complainant's building by two witnesses at approximately the time the attack occurred. Arthur Serrano testified that he observed them enter complainant's building between 6:30 and 7:00 p.m. and that no one else either entered or exited the building during that period of time. Julia Ann Colon identified the codefendants as the two she saw walking down the alley in the direction of complainant's building between 6:00 and 7:00 p.m., and whom she observed return from that direction a short time later, enter a gray automobile and drive off.

Walter Williams testified that defendant and Postell came to his home between 5:30 and 6:00 p.m. to use his telephone but left because his phone was out of order. While there, however, he overheard them discussing their desire to "rip something off". Defendant and Postell came back to William house approximately one-half hour later and asked Williams to give them a ride out of town, which he did in his gray Cadillac. Williams noticed that Postell was carrying a purple pouch.

A week or so later, Williams again gave defendant a ride, and was told by defendant that defendant had not been involved in the rape, and that Postell was entirely to be blamed. However, they then picked up Postell, who was hitchhiking, and Williams overheard the codefendants discussing how they could exculpate themselves.

The jury also heard testimony from Penny Troy that on December 13, defendant had bragged to her about having had a sexual experience with a white girl in Mountaindale. She testified further that Postell, on the same occasion, admitted that he had raped a girl in Mountaindale.

Defenda...