People v. Oglesby

• Decision Date: 18 November 2004
• Docket Number: 77359.
• Citation: 12 A.D.3d 857,2004 NY Slip Op 08273,787 N.Y.S.2d 401
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JAMES OGLESBY, Appellant.
• Court: New York Supreme Court — Appellate Division

12 A.D.3d 857

787 N.Y.S.2d 401

2004 NY Slip Op 08273

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JAMES OGLESBY, Appellant.

77359.

Appellate Division of the Supreme Court of the State of New York, Third Department.

November 18, 2004.

Appeal from a judgment of the Supreme Court (Plumadore, J.), rendered July 1, 1996 in Franklin County, upon a verdict convicting defendant of the crimes of attempted rape in the first degree, sodomy in the second degree (five counts) and sodomy in the third degree (three counts).

Cardona, P.J.

In a nine-count indictment, defendant was charged with various counts of rape and sodomy stemming from incidents allegedly occurring in 1991 with a female relative born in July 1977. Following a jury trial, defendant was convicted of one count of attempted rape in the first degree, five counts of sodomy in the second degree and three counts of sodomy in the third degree. Defendant was sentenced to an aggregate prison term of 8 2/3 to 26 years.

Initially, we are unpersuaded by defendant's contention that the indictment did not provide him with "sufficient information regarding the nature of the charge[s] and the conduct which underlies the accusation[s] to allow him . . . to prepare or conduct a defense" (People v Morris, 61 NY2d 290, 293 [1984]; see People v Johnson [Raggs] [Moore], 268 AD2d 891, 892 [2000], lvs denied 94 NY2d 921, 923, 924 [2000]). The indictment, as amplified by the bill of particulars, properly informed defendant that he was charged with specific acts of rape and sodomy, as well as the location and times when those crimes occurred (see People v Smith, 7 AD3d 917, 918 [2004]). As for defendant's challenge to the sufficiency of the time periods alleged, "[a] court must consider the following factors to determine if a more precise date could have been given in the indictment: (1) the age and intelligence of the victim, (2) the surrounding circumstances, and (3) the nature of the offense, including whether it is likely to occur at a specific time or is likely to be discovered immediately" (People v Smith, 272 AD2d 713, 714 [2000], lv denied 95 NY2d 871 [2000]; see People v Morris, supra at 296). Furthermore, "when the period of time is not an essential element of any of the charged crimes, an approximation of time is satisfactory" (People v Johnson, supra at 892), and any determination regarding the adequacy of the time interval set forth in the indictment "`must be made on an ad hoc basis by considering all relevant circumstances'" (People v Watt, 81 NY2d 772, 774 [1993], quoting People v Morris, supra at 295).

Here, the indictment stated the period of time for count one as "in or about late October or early November, 1991," for counts two through six, "March1 — June 30, 1991" and for counts seven through nine, a time period of "June and July or August, 1991." In this matter, the victim was 13 years old, and later 14, at the relevant times and the People produced proof indicating that the victim was initially discouraged from reporting the incidents by her mother. In addition, the crimes were committed while the victim and defendant were alone. Given the age of the victim, the time between the occurrence of the crimes and the date the victim reported the crimes, and the fact that time is not a material element of the charged crimes, we conclude that the counts charged in the indictment "were sufficiently adequate to comport with CPL 200.50 (6) and due process" (People v Keefer, 262 AD2d 791, 792 [1999], lv denied 94 NY2d 824 [1999]; see People v Smith, supra at 714; People v Green, 250 AD2d 143, 145-146 [1998], lv denied 93 NY2d 873 [1999]) and provided defendant with sufficient notice to prepare a defense (see People v Morris, supra at 297).

Next, we find that the People presented legally sufficient evidence to support defendant's conviction of attempted rape in the first degree. Contrary to defendant's argument, the People offered adequate proof of the element of forcible compulsion (see Penal Law § 130.00 [8]) to support a conviction of attempted rape in the first degree (Penal Law §§ 110.00, 130.35 [1]). Defendant was born in 1956 and is 6 feet 2 inches tall. The victim testified that, in October or November 1991, he entered her bedroom at night while she was sleeping and "tried to put his penis into [her] vagina." The victim stated that she told defendant to stop, however, he covered her mouth and said, "Shush, be quiet," and "he kept pushing a little harder until it hurt and I was crying." When asked if she tried to move during this incident, the victim testified, "yes, but he held me down . . . He just had his body against my body and he has his hand over my mouth."

In light of the "age of the victim[ ], defendant's extreme advantage in maturity, size and strength, [and] the fact that the victim [ ] . . . considered [defendant] to be an authority figure" (People v Sehn, 295 AD2d 749, 751 [2002], lv denied 98 NY2d 732 [2002]), when viewed in a light most favorable to the People, a rational jury could conclude that defendant committed the crime of attempted rape in the first degree by means of forcible compulsion (see People v Peraza, 288 AD2d 689, 691 [2001], lv denied 97 NY2d 707 [2002]; People v Miller, 226 AD2d 833, 836 [1996], lv denied 88 NY2d 939 [1996]; People v Wilson, 192 AD2d 782, 783 [1993]). Additionally, in independently reviewing the testimony and giving great deference to the jury's findings regarding the credibility and demeanor of the witnesses, the jury's finding that defendant used forcible compulsion against the victim was not against the weight of the evidence (see People v Sehn, supra at 751).

Furthermore, we note that although defendant makes a general statement that he is challenging the weight and sufficiency of the remaining convictions, he makes no specific reference to the three convictions of sodomy in the third degree. In any event, our review establishes that the People produced legally sufficient evidence to support those convictions and they were not against the weight of the evidence. As for the five convictions of sodomy in the second degree, defendant does not detail any claim of legal insufficiency and only directs his attention to certain evidence which created questions of fact for the jury's determination. We find that there was legally sufficient proof presented to support the five sodomy in the second degree convictions and, with respect to the argument that they were against the weight of the evidence, we find no basis for reversal. According to the statute in effect at the time of defendant's convictions, a person is guilty of sodomy in the second degree when, being 18 years of age or older, he or she engages in deviate sexual intercourse with another person less then 14 years old (see Penal Law former § 130.45). At trial, the victim testified that on five occasions between the months of March and June 1991, while lying on the couch at home, defendant laid down behind her, pulled her pants down and pressed his penis against her "butt." Defendant argues that the five convictions should be overturned because the victim testified that she did not see defendant's penis and failed to notice defendant adjusting his clothes at the time of the crimes. However, given the victim's description of how the crime occurred and that defendant's penis came in contact with her anus, we do not find it dispositive, as matter of law, that the victim did not view defendant's penis.

Defendant also challenges the convictions based upon a receipt, dated May 3, 1991, representing the purchase of a "flowered" couch, which he asserts contradicts the victim's testimony that some of the initial crimes occurred on that particular couch prior to its purchase. The People produced proof that the victim's mother replaced couches frequently. Therefore, a rational jury could have concluded that the victim was simply confused as to which couch was in the living room at the time of the initial incidents. Accordingly, when viewed in a neutral light, it cannot be said that the verdict was against the weight of the evidence (see People v Soulia, 263 AD2d 869, 873 [1999], lv denied 94 NY2d 829 [1999]; People v Roe, 235 AD2d 950, 952 [1997], lv...