People v. Patno

• Decision Date: 13 January 1977
• Citation: 55 A.D.2d 965,390 N.Y.S.2d 468
• Parties: The PEOPLE of the State of New York, Respondent, v. David PATNO, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 468

390 N.Y.S.2d 468

55 A.D.2d 965

The PEOPLE of the State of New York, Respondent, v. David PATNO, Appellant.

Supreme Court, Appellate Division, Third Department.

Jan. 13, 1977.

J. Byron O'Connell, Plattsburgh, for appellant.

Joseph W. Kelley, Clinton County Dist. Atty., Plattsburgh (Alan D. Marrus, Brooklyn, of counsel), for respondent.

Before KANE, J.P., and MAHONEY, MAIN, LARKIN and HERLIHY, JJ.

MEMORANDUM DECISION.

Appeal from a judgment of the County Court of Clinton County, rendered December 10, 1975, upon a verdict convicting defendant of the crimes of attempted rape in the first degree and attempted sodomy in the first degree.

At 1:30 A.M. on Sunday, June 15, 1975, the 15-year-old complainant was found naked in a driveway off South Catherine Street, a residential section of Plattsburgh. She was taken to a hospital for treatment of scalp and neck injuries. At about 3:30 A.M., in the hospital, she was shown, by police, photographs of 15 to 20 different young white males. She recognized a two-year-old photograph of defendant as a picture of her assailant. Later that morning David Wannemacher, while reporting an unrelated burglary, was told by police of the attack upon the complainant. Wannemacher thereupon mentioned that while driving along South Catherine Street between 1:00 and 1:30 that morning he had seen the complainant walking on the sidewalk, followed at something less than 100 feet by David Patno, the defendant. He had known Patno, albeit not as a friend, for some five years. Wannemacher dropped off a friend nearby and returned via the same street, where he again saw the complainant and Patno. In the five-minute lapse between sightings the distance between the complainant and Patno had been halved.

Also on the 15th the police questioned the defendant at the restaurant where he worked, and later the same day arrested him. The next day a new photograph was taken and shown to the complainant along with photographs of nine other white males. She unequivocally identified Patno.

At trial the complainant testified that while walking home she was hit on the head from behind and dragged to the rear of a nearby house. Her assailant, whom she confidently identified as the defendant both in the court room and at two prior photographic displays, ¹ attempted to rape and sodomize her. In the course of these attempts, he constantly choked her and threatened to kill her. She managed to scratch his face. Photographs of her and medical testimony corroborated that she had received injuries to the back of the head and the neck consistent with being struck on the head and choked. Her testimony was further supported by Wannemacher placing the defendant at the scene and a photograph of defendant taken upon arrest showing a facial scratch.

The defendant did not testify. However, his statement to the police that he was home by 11:45 P.M. on the 14th and that he was scratched by his pet bird were allowed in evidence against him ². His assertion that he was home by 11:45 turned strongly against him when Nicholas Gordon, who had shared an apartment with the defendant, testified to having seen him at 12:30 A.M. outside the Monopole, the same bar the complainant left just minutes before the attack. The only evidence by the defense which cast doubt on the identification of the defendant was the testimony of three members of the Perry family (father, mother and daughter), who helped the girl after she was found. According to the Perrys when asked what had happened, she said 'they dumped me'. The complainant had testified, earlier in the trial, that she had responded 'he jumped me'. The defense urged the theory that she in fact had been 'dumped', probably from an automobile, by more than one person. However, no other meaningful evidence was introduced to further this theory. It is in this context that the potentially prejudicial arguments of the prosecutor must be considered.

While we do not approve of the prosecutor's remarks in summation that tended to invoke the so-called 'safe streets' argument (cf. People v. Moore, 26 A.D.2d 902, 274 N.Y.S.2d 518), nor do we condone the propriety of suggesting to the jury that its function was to convict, we cannot say that such comments were of reversible dimension. They were made in response to a defense attack upon the People's witnesses and were made within the context of overwhelming proof of guilt.

Accordingly, the conviction must be affirmed. The proof of guilt was virtually conclusive. The complainant had a good opportunity to see her assailant, and twice recognize photographs of him from fair samplings. She did not know him before, nor had she any motive to falsely accuse him. The medical evidence proves she was assaulted by someone, and her nakedness corroborates the assault was sexual. Moreover, Wannemacher, who also had no reason to lie, placed the defendant on South Catherine Street walking behind the victim minutes before the crime and nearly two hours after the time the defendant said he was home. Since Wannemacher had known the defendant for some five years, the chance of misidentification was...