People v. Robert G.

• Decision Date: 05 May 2017
• Citation: 54 N.Y.S.3d 475,150 A.D.3d 1634
• Parties: The PEOPLE of the State of New York, Respondent, v. Robert G. CASE, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

150 A.D.3d 1634
54 N.Y.S.3d 475

The PEOPLE of the State of New York, Respondent,
v.
Robert G. CASE, Defendant–Appellant.

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

May 5, 2017.

54 N.Y.S.3d 476

The Legal Aid Bureau of Buffalo, Inc., Buffalo (Caitlin M. Connelly of Counsel), for Defendant–Appellant.

Lori Pettit Rieman, District Attorney, Little Valley (Amber L. Kerling of Counsel), for Respondent.

PRESENT: WHALEN, P.J., SMITH, CENTRA, TROUTMAN, AND SCUDDER, JJ.

MEMORANDUM:

Defendant appeals from a judgment convicting him upon a jury verdict of rape in the first degree (Penal Law § 130.35[1] ), assault in the second degree ( [felony assault] § 120.05[6] ), strangulation in the second degree (§ 121.12), and unlawful imprisonment in the first degree (§ 135.10), arising from allegations that he forcibly raped his estranged wife in the garage of their former marital residence. Defendant failed to preserve for our review his challenge to the legal sufficiency of the evidence because "his motion for a trial order of dismissal was not specifically directed at the grounds advanced on appeal" (People v. Wright, 107 A.D.3d 1398, 1401, 967 N.Y.S.2d 296, lv. denied 23 N.Y.3d 1026, 992 N.Y.S.2d 809, 16 N.E.3d 1289 ; see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 ). We nevertheless exercise our power to review his challenge as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).

We agree with defendant that the conviction of felony assault and strangulation is not supported by legally sufficient evidence with respect to the physical injury element (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). The evidence submitted by the People, i.e., that the victim sustained

54 N.Y.S.3d 477

minor pain, a one-centimeter bruise on her arm, and a swollen neck, is insufficient to establish either physical impairment or substantial pain (see Penal Law § 10.00[9] ; People v. Coleman, 134 A.D.3d 1555, 1555–1556, 22 N.Y.S.3d 776, lv. denied 27 N.Y.3d 963, 36 N.Y.S.3d 625, 56 N.E.3d 905 ; Matter of Antonio J., 129 A.D.2d 988, 988, 514 N.Y.S.2d 156 ; cf. People v. Delaney, 138 A.D.3d 1420, 1421, 30 N.Y.S.3d 434, lv. denied 28 N.Y.3d 928, 40 N.Y.S.3d 357, 63 N.E.3d 77 ). Consequently, the felony assault count must be dismissed. With respect to the strangulation count, we conclude that the evidence is legally sufficient to support a conviction of the lesser included offense of criminal obstruction of breathing or blood circulation (Penal Law § 121.11 ). Because there must be a new trial for the reasons discussed below, however, count five of the indictment charging defendant with strangulation in the second degree is dismissed with leave to the People to re-present any appropriate charges under that count to another grand jury (see generally People v. Gonzalez, 61 N.Y.2d 633, 635, 471 N.Y.S.2d 847, 459 N.E.2d 1285 ).

Contrary to defendant's further contention, viewing the evidence in the light most favorable to the People (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we conclude that the evidence is legally sufficient to support the conviction of rape and unlawful imprisonment (see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Furthermore, viewing the evidence in light of the elements of the crimes of rape in the first degree and unlawful imprisonment as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we conclude that the verdict with respect to those crimes is not against the weight of the evidence (see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).

Defendant failed to preserve for our review his contention that the conviction of unlawful imprisonment must be dismissed based on the merger doctrine (see People v. Hanley, 20 N.Y.3d 601, 605–606, 964 N.Y.S.2d 491, 987 N.E.2d 268 ). In any event, that contention is without merit (see People v. Smith, 47 N.Y.2d 83, 87, 416 N.Y.S.2d 784, 390 N.E.2d 291 ).

Defendant contends that County Court erred in precluding him from introducing evidence that the victim had previously said, in effect, that she would accuse defendant of rape in order to obtain a divorce from him. Defendant contends that the court further erred in striking the testimony of a witness regarding that statement. Any error in precluding that evidence and striking that testimony is harmless because "the precluded testimony was essentially cumulative of other evidence presented at trial ..., and ... defendant was provided a meaningful opportunity to present a complete defense" (People v. Ramsey, 59 A.D.3d 1046, 1048, 872 N.Y.S.2d 789, lv. denied 12 N.Y.3d 858, 881 N.Y.S.2d 670, 909 N.E.2d 593 [internal quotation marks omitted]; see People v. Davis, 111 A.D.3d 1302, 1304, 974 N.Y.S.2d 221, lv. denied 22 N.Y.3d 1137, 983 N.Y.S.2d 496, 6 N.E.3d 615 ; see also People v. Herring, 225 A.D.2d 1065, 1066, 639 N.Y.S.2d 604, lv. denied 88 N.Y.2d 937, 647 N.Y.S.2d 170, 670 N.E.2d 454 ). Defendant's contention that he was denied effective assistance of counsel by his attorney's failure to object or seek other corrective action with respect to those alleged errors "is raised for the first time in his reply brief and therefore is not properly before us" (People v. Sponburgh, 61 A.D.3d 1415, 1416, 877 N.Y.S.2d 585, lv. denied 12 N.Y.3d 929, 884 N.Y.S.2d 711, 912 N.E.2d 1092 ; see

54 N.Y.S.3d 478

People v. Spears, 125 A.D.3d 1400, 1400, 2 N.Y.S.3d 719, lv. denied 25 N.Y.3d 1172, 15 N.Y.S.3d 303, 36 N.E.3d 106 ).

We reject defendant's contention that the court erred in denying his motion to discharge a sworn juror. During the trial, that juror indicated to a court officer that a courtroom spectator seated near the defense table had befriended the juror on social media, and was attempting to contact the juror. The juror concluded that the spectator was attempting to contact him in order to persuade him to acquit defendant. In order to discharge a sworn juror, the court "must be convinced that the juror's knowledge will prevent [him or] her from rendering an impartial verdict" (People v. Buford, 69 N.Y.2d 290, 299, 514 N.Y.S.2d 191, 506 N.E.2d 901 ). "On this record, we are unable to conclude that the court could have been ‘convinced’ ..., based on any unequivocal responses of the juror, that the juror was ‘grossly unqualified to serve in the case’ " (People v. Telehany, 302 A.D.2d 927, 928, 754 N.Y.S.2d 508, quoting CPL 270.35[1] ; cf. People v. Maddox, 175 A.D.2d 183, 183, 572 N.Y.S.2d 70 ).

We agree with defendant, however, that the prosecutor engaged in misconduct on several occasions, and we reach defendant's unpreserved contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ). Here, the prosecutor engaged in misconduct during her closing statement by repeatedly appealing to the jury's sympathy, asking the jury to do justice and protect the victim by convicting defendant, bolstering the victim's credibility and injecting the prosecutor's personal opinions into the trial. Perhaps most egregiously, in arguing that the jury should reject defendant's testimony that he confessed falsely to the police because he needed to use the bathroom, the prosecutor gave her personal opinion regarding defendant's credibility by stating that she would sit in her own urine rather than falsely admit that she committed a crime. "We can only conclude herein that the prosecutor's ‘inflammatory [comments had] a decided tendency to prejudice the jury against the defendant’ " (People v....