People v. Rivera

• Citation: 206 A.D.3d 1356,170 N.Y.S.3d 672
• Decision Date: 23 June 2022
• Docket Number: 111033
• Parties: The PEOPLE of the State of New York, Respondent, v. Storm N. RIVERA, Appellant.
• Court: New York Supreme Court — Appellate Division

206 A.D.3d 1356

170 N.Y.S.3d 672

The PEOPLE of the State of New York, Respondent,

v.Storm N. RIVERA, Appellant.

111033

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

Calendar Date: April 20, 2022

Decided and Entered: June 23, 2022

Rural Law Center of New York, Castleton (Kelly L. Egan of counsel), for appellant, and appellant pro se.

Gary M. Pasqua, District Attorney, Canton (Matthew L. Peabody of counsel), for respondent.

Before: Aarons, J.P., Pritzker, Reynolds Fitzgerald, Ceresia and Fisher, JJ.

MEMORANDUM AND ORDER

Pritzker, J. Appeal from a judgment of the County Court of St. Lawrence County (Catena, J.), rendered April 5, 2019, upon a verdict convicting defendant of the crimes of rape in the first degree and unlawful imprisonment in the second degree.

In April 2018, defendant was charged by indictment with rape in the first degree and unlawful imprisonment in the second degree in connection with the alleged rape of the victim at a party at defendant's college fraternity in November 2017. After a jury trial, defendant was convicted as charged. Following an unsuccessful CPL 330.30 motion to set aside the verdict based on ineffective assistance of counsel, defendant was sentenced to a prison term of eight years to be followed by 10 years of postrelease supervision for his conviction of rape in the first degree and to a lesser concurrent jail term for his conviction of unlawful imprisonment in the second degree. Defendant appeals.

Defendant first contends that the verdict as to his conviction for rape in the first degree is against the weight of the evidence. As relevant here, a "person is guilty of rape in the first degree when he or she engages in sexual intercourse with another person ... by forcible compulsion" ( Penal Law § 130.35[1] ). "Within the context of sex offenses, forcible compulsion means to compel by either use of physical force; or a threat, express or implied, which places [the victim] in fear of immediate death or physical injury" ( People v. Garrand, 189 A.D.3d 1763, 1764, 134 N.Y.S.3d 583 [2020] [internal quotation marks and citations omitted], lv denied 36 N.Y.3d 1120, 146 N.Y.S.3d 229, 169 N.E.3d 587 [2021] ; see Penal Law § 130.00[8] ).

Here, the victim testified that defendant pushed her down over a couch, held her down while she repeatedly tried to get up and, despite telling defendant in various ways that she did not consent, he engaged in sexual intercourse with her.¹

Although there were no other witnesses who observed the actual incident, the People put in forensic testimony which established that defendant's DNA profile matched that of DNA found in the victim's underwear. The People also called an expert witness who testified about trauma responses in sexual assault victims. Defendant, in both his oral and written statements to police prior to his arrest and his testimony at trial,² asserted that the sexual intercourse was not by forcible compulsion but, rather, was consensual. "While there were certainly differences between the victim's and defendant's versions of events, their conflicting testimony ‘presented a classic he-said-she-said credibility determination for the jury to resolve’ " ( People v. Horton, 162 A.D.3d 1118, 1120, 78 N.Y.S.3d 748 [2018], quoting People v. Kiah, 156 A.D.3d 1054, 1056, 67 N.Y.S.3d 337 [2017], lvs denied 31 N.Y.3d 981, 984, 77 N.Y.S.3d 659, 662, 102 N.E.3d 436, 439 [2018]). Although defendant raises multiple assertions as to why the victim's testimony is incredible as a matter of law, we do not find anything in the record to support such contentions (see People v. Alexander, 160 A.D.3d 1121, 1123, 75 N.Y.S.3d 315 [2018], lv denied 31 N.Y.3d 1144, 83 N.Y.S.3d 426, 108 N.E.3d 500 [2018] ; People v. Bautista, 147 A.D.3d 1214, 1216, 47 N.Y.S.3d 503 [2017] ). "Viewing the evidence in a neutral light and according deference to the jury's credibility assessments, the verdict is supported by the weight of the evidence as to all of the charged crimes" ( People v. Brabham, 126 A.D.3d 1040, 1043, 4 N.Y.S.3d 386 [2015] [citations omitted], lvs denied 25 N.Y.3d 1160, 1171, 15 N.Y.S.3d 292, 303, 36 N.E.3d 95, 106 [2015]; accord People v. Horton, 162 A.D.3d at 1120, 78 N.Y.S.3d 748 ).³

Defendant next asserts that County Court erred in denying his motion to suppress statements made to the police because his right to counsel had attached regardless of whether he was in police custody or not. As relevant here, "[i]t is well settled that a defendant's indelible right to counsel attaches in two situations; the first being upon the commencement of formal proceedings, whether or not the defendant has actually retained or requested a lawyer, and the second when an uncharged individual has actually retained a lawyer in the matter at issue or, while in custody, has requested a lawyer in that matter" ( People v. Slocum, 133 A.D.3d 972, 974, 20 N.Y.S.3d 440 [2015] [internal quotation marks and citations omitted], appeal dismissed 29 N.Y.3d 954, 51 N.Y.S.3d 485, 73 N.E.3d 841 [2017] ; see People v. Spahalski, 151 A.D.3d 1716, 1717, 57 N.Y.S.3d 291 [2017], lv denied 30 N.Y.3d 953, 67 N.Y.S.3d 137, 89 N.E.3d 527 [2017] ).

A review of the suppression hearing testimony and a video recording, which was admitted into evidence at the hearing, reflect that defendant first went to the Potsdam Police Department and spoke with an investigator in December 2017 but, after the investigator read defendant his Miranda rights, defendant stated that he had spoken with an attorney and did not wish to provide a statement at that time. The interview terminated at that point. Defendant later requested to speak with the investigator and returned to the police department to do so in February 2018. The investigator clarified that defendant previously stated he had an attorney, but that that person ended up not being defendant's attorney and that defendant tried to find an attorney on his own. Defendant appears to have stated that he could not afford an attorney. The investigator then clarified that defendant was there on his own accord and was free to leave at any time. The interview ensued and defendant, who was not restrained in any way, did not at any point request an attorney. At the conclusion of the interview defendant freely left the police station. Given the foregoing, defendant, who had not been charged, was clearly not in custody given that he was not restrained in any way and was repeatedly told that he was free to leave at any point, which he in fact did at the conclusion of the interview (see People v. Lyons, 200 A.D.3d 1222, 1223–1224, 157 N.Y.S.3d 594 [2021], lv denied 37 N.Y.3d 1162, 160 N.Y.S.3d 723, 181 N.E.3d 1151 [2022] ; People v. Pagan, 97 A.D.3d 963, 966–967, 948 N.Y.S.2d 757 [2012], lv denied 20 N.Y.3d 934, 957 N.Y.S.2d 694, 981 N.E.2d 291 [2012] ). Although defendant argues that his right to counsel did attach because he informed the investigator that he had an attorney in December 2017 and defendant spoke to this attorney, defendant is incorrect. Given the revelation in the February 2018 interview that defendant did not actually retain an attorney in December 2017, defendant's right to counsel did not attach (see People v. Spahalski, 151 A.D.3d at 1716–1717, 57 N.Y.S.3d 291 ; compare People v. Slocum, 133 A.D.3d at 977–978, 20 N.Y.S.3d 440 ). Accordingly, County Court properly denied defendant's motion to suppress the statements made at this interview.

We are also not persuaded that defendant was deprived of his right to a fair trial due to prosecutorial misconduct. Specifically, defendant takes issue with the prosecutor referring to the victim as a "victim" and a "survivor," asking leading questions of the victim and expressing his personal opinion of the credibility of witnesses. We note that the prosecutor only referred to the victim as a "victim" and a "survivor" twice and, although the prosecutor asked multiple leading questions, County Court took appropriate corrective action in sustaining objections to these questions. Moreover, although it was improper for the prosecutor to express his personal opinion of the credibility of witnesses, County Court gave an appropriate curative instruction after defendant objected and, while charging the jury, again instructed that the comment was improper and was to be disregarded (see People v. Johnson, 183 A.D.3d 77, 90, 122 N.Y.S.3d 137 [2020], lv denied 35 N.Y.3d 993, 125 N.Y.S.3d 631, 149 N.E.3d 392 [2020] ; People v. Devictor–Lopez, 155 A.D.3d 1434, 1437, 66 N.Y.S.3d 346 [2017] ). Accordingly, reversal is not required given that "our review of the record as a whole ‘fails to disclose that the prosecutor engaged in a flagrant and pervasive pattern of prosecutorial misconduct so as to deprive defendant of a fair trial’ " ( People v. Burns, 188 A.D.3d 1438, 1442, 136 N.Y.S.3d 532 [2020], lvs denied 36 N.Y.3d 1055, 1060, 141 N.Y.S.3d 751, 756, 779, 165 N.E.3d 677, 682, 705 [2021], quoting People v. Shamsuddin, 167 A.D.3d 1334, 1336, 90 N.Y.S.3d 376 [2018], lv denied 33 N.Y.3d 953, 100 N.Y.S.3d 151, 123 N.E.3d 810 [2019] ).

Defendant also contends that he was not provided the effective assistance of counsel. "To establish a claim of ineffective assistance of counsel, a defendant is required to demonstrate that he or she was not provided meaningful representation and that there is an absence of strategic or other legitimate explanations for counsel's allegedly deficient conduct" ( People v. Santana, 179 A.D.3d 1299, 1302, 117 N.Y.S.3d 729 [2020] [internal quotation marks and citations omitted], lv denied 35 N.Y.3d 973, 125 N.Y.S.3d 11, 148 N.E.3d 475 [2020] ; see People v. Sanchez, 196 A.D.3d 1010, 1013–1014, 151 N.Y.S.3d 267 [2021], lv denied 37 N.Y.3d 1029, 153 N.Y.S.3d 435, 175 N.E.3d 460 [2021] ). Defendant argues that counsel did not provide meaningful representation in that he failed, among other things, to pursue a possible Rosario violation and to inquire as to testing performed on the victim's skirt. "Defe...