People v. Muniz

• Decision Date: 01 March 2012
• Citation: 93 A.D.3d 871,2012 N.Y. Slip Op. 01518,939 N.Y.S.2d 181
• Parties: The PEOPLE of the State of New York, Respondent, v. Albiso C. MUNIZ, Appellant.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 01518
93 A.D.3d 871
939 N.Y.S.2d 181

The PEOPLE of the State of New York, Respondent,
v.
Albiso C. MUNIZ, Appellant.

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

March 1, 2012.

[939 N.Y.S.2d 182]

Theresa M. Suozzi, Saratoga Springs, for appellant, and appellant pro se.

Weeden A. Wetmore, District Attorney, Elmira (Susan Rider–Ulacco of counsel), for respondent.

Before: MERCURE, Acting P.J., PETERS, ROSE, LAHTINEN and GARRY, JJ.

PETERS, J.

Appeals (1) from a judgment of the County Court of Chemung County (Hayden, J.), rendered April 2, 2009, upon a verdict convicting defendant of the crimes of rape in the second degree, petit larceny and criminal mischief in the fourth degree, and (2) by permission, from an order of said court, entered November 9, 2009, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.

On the morning of June 14, 2007, Virginia Candelaria called 911 reporting that she had arrived at her apartment in the City of Elmira, Chemung County to find the victim, her roommate's 13–year–old daughter, engaged in sexual intercourse with a man later identified as defendant, who was 37 years old at the time. Following a jury trial, defendant was convicted of rape in the second degree, petit larceny and criminal mischief in the fourth degree. County Court denied defendant's pro se motion to set aside the verdict and sentenced him, as a second felony offender, to 3 1/2 to 7 years in prison. After it was discovered that the sentence imposed on the rape count was illegal, defendant was resentenced to an aggregate term of seven years in prison followed by five years of postrelease supervision. Defendant's subsequent CPL 440.10 motion was denied without a hearing. He now appeals from the judgment of conviction and, by permission, from the order denying his CPL 440.10 motion.

We reject defendant's contention that the indictment must be dismissed because he appeared before the grand jury in shackles and prison garb. Although the requisite reasonable basis for the restraint was not articulated on the record, reversal is not required since the prosecutor's cautionary instructions to the grand jury were sufficient to dispel any potential prejudice ( see People v. Crumpler, 70 A.D.3d 1396, 1397, 894 N.Y.S.2d 303 [2010], lv. denied 14 N.Y.3d 839, 901 N.Y.S.2d 146, 927 N.E.2d 567 [2010]; People v. Pennick, 2 A.D.3d 1427, 1428, 768 N.Y.S.2d 886 [2003], lv. denied 1 N.Y.3d 632, 777 N.Y.S.2d 30, 808 N.E.2d 1289 [2004]; People v. Fells, 279 A.D.2d 706, 708–709, 718 N.Y.S.2d 458 [2001], lv. denied 96 N.Y.2d 758, 725 N.Y.S.2d 284, 748 N.E.2d 1080 [2001]; People v. Felder, 201 A.D.2d 884, 885, 607 N.Y.S.2d 793 [1994], lv. denied 83 N.Y.2d 871, 613 N.Y.S.2d 132, 635 N.E.2d 301 [1994] ). In addition, defendant's

[939 N.Y.S.2d 183]

claim that the public servant who transported him from the jail to the grand jury proceeding was not administered an oath of secrecy ( see CPL 190.25[3][e] ) is belied by the record. Accordingly, County Court properly denied defendant's motion to dismiss the indictment on these grounds.

We are similarly unpersuaded by defendant's argument that the pretrial identification procedure used by the police was unduly suggestive. “ ‘A photo array is unduly suggestive if some characteristic of one picture draws the viewer's attention in such a way as to indicate that the police have made a particular selection’ ” ( People v. Davis, 18 A.D.3d 1016, 1018, 795 N.Y.S.2d 785 [2005], lv. denied 5 N.Y.3d 805, 803 N.Y.S.2d 34, 836 N.E.2d 1157 [2005], quoting People v. Yousef, 8 A.D.3d 820, 821, 778 N.Y.S.2d 326 [2004], lv. denied 3 N.Y.3d 743, 786 N.Y.S.2d 822, 820 N.E.2d 301 [2004] ). Here, the array depicts individuals of similar age, appearance and physical characteristics. The officer who prepared the array testified at the Wade hearing that Candelaria and the victim were showed the array at separate times and places, that each identified defendant as the perpetrator, and that no suggestions were made regarding which photo they should choose. Defendant's contention that his photo was taken at a slightly closer range than the others does not render the array unduly suggestive ( see People v. Means, 35 A.D.3d 975, 976, 824 N.Y.S.2d 821 [2006], lv. denied 8 N.Y.3d 948, 836 N.Y.S.2d 558, 868 N.E.2d 241 [2007]; People v. Brown, 169 A.D.2d 934, 935, 564 N.Y.S.2d 834 [1991], lv. denied 77 N.Y.2d 958, 570 N.Y.S.2d 492, 573 N.E.2d 580 [1991]; see also People v. Lawal, 73 A.D.3d 1287, 1288, 900 N.Y.S.2d 515 [2010] ). Nor do the discrepancies between the description provided by Candelaria and defendant's appearance require suppression ( see People v. Hunter, 32 A.D.3d 611, 613, 819 N.Y.S.2d 620 [2006] ). Thus, County Court properly denied defendant's motion to suppress the identifications.

Defendant's claim that the verdict was against the weight of the evidence is also without merit. The victim testified that she met defendant, who she identified in open court, when he offered her a ride as she was walking home. At his request, she gave him her home telephone number before he dropped her off at her apartment. Two days later, he called early in the morning and asked her if anyone was home; when she said no, he asked if he could come over, and the victim told him that he could. The victim explained that after defendant arrived they began kissing and eventually moved to the bedroom where defendant “put his penis in [her] vagina.” While defendant highlights certain inconsistencies between the victim's in-court testimony and her out-of-court statements or other evidence in the record, and stresses the fact that she had been diagnosed with bipolar disorder and was hospitalized at the time of trial, these issues were fully explored at trial and do not render her testimony incredible as a matter of law ( see People v. Shepherd, 83 A.D.3d 1298, 1299, 921 N.Y.S.2d 666 [2011], lv. denied 17 N.Y.3d 809, 929 N.Y.S.2d 569, 953 N.E.2d 807 [2011]; People v. Stearns, 72 A.D.3d 1214, 1216, 898 N.Y.S.2d 348 [2010], lv. denied 15 N.Y.3d 778, 907 N.Y.S.2d 467, 933 N.E.2d 1060 [2010]; People v. Conklin, 63 A.D.3d 1276, 1277, 881 N.Y.S.2d 524 [2009], lv. denied 13 N.Y.3d 859, 891 N.Y.S.2d 693, 920 N.E.2d 98 [2009] ). Moreover, despite defendant's assertion to the contrary, corroboration of the victim's testimony was not required because her incapacity to consent was a product of her age ( see People v. Carroll, 95 N.Y.2d 375, 383, 718 N.Y.S.2d 10, 740 N.E.2d 1084 [2000];

[939 N.Y.S.2d 184]

People v. Alford, 287 A.D.2d 884, 886, 731 N.Y.S.2d 563 [2001], lv. denied 97 N.Y.2d 750, 742 N.Y.S.2d 610, 769 N.E.2d 356 [2002]; People v. Kelly, 270 A.D.2d 511, 512, 705 N.Y.S.2d 689 [2000], lv. denied 95 N.Y.2d 854, 714 N.Y.S.2d 5, 736 N.E.2d 866 [2000] ).

Aside from the victim's testimony, Candelaria testified that, upon returning home at approximately 9:00 A.M. on the morning of the incident after working her overnight shift, she noticed that the downstairs front door was unlocked and the upstairs door to the apartment was ajar. Upon entering the inside of the apartment and hearing noise from the victim's room, she pushed the victim's door open and saw a man, whom she identified in court as defendant, having sex with the victim. Candelaria testified that defendant then frantically began getting dressed and, as she called 911 on her cordless...