People v. Robinson

• Decision Date: 21 December 2017
• Docket Number: 107760
• Citation: 156 A.D.3d 1123,67 N.Y.S.3d 709
• Parties: The PEOPLE of the State of New York, Respondent, v. Herman ROBINSON, Appellant.
• Court: New York Supreme Court — Appellate Division

156 A.D.3d 1123

67 N.Y.S.3d 709

The PEOPLE of the State of New York, Respondent,

v.Herman ROBINSON, Appellant.

107760

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

Calendar Date: November 15, 2017

Decided and Entered: December 21, 2017

Paul J. Connolly, Delmar, for appellant.

Robert M. Carney, District Attorney, Schenectady (Tracey A. Brunecz of counsel), for respondent.

Before: Egan Jr., J.P., Rose, Devine, Mulvey and Rumsey, JJ.

MEMORANDUM AND ORDER

Egan Jr., J.P.

Appeals (1) from a judgment of the Supreme Court (Coccoma, J.), rendered May 28, 2015 in Schenectady County, convicting defendant following a nonjury trial of the crimes of murder in the second degree, predatory sexual assault against a child, course of sexual conduct against a child in the first degree, rape in the first degree (two counts), rape in the second degree and endangering the welfare of a child, and (2) from a judgment of said court, rendered October 5, 2016 in Schenectady County, which dismissed the count of course of sexual conduct against a child in the first degree and resentenced defendant.

On December 10, 2013, the City of Schenectady Police Department responded to a possible suicide attempt at a residence in the City of Schenectady, Schenectady County. Upon arrival, police spoke with defendant's girlfriend, who resided at the subject address, and obtained her permission to enter the residence to search for defendant, whom she believed intended to harm himself. During the ensuing search of the residence, police discovered a notebook with an apparent handwritten suicide note and, thereafter, discovered defendant unresponsive in a vehicle in the rear yard of the residence. Upon a further search of the residence, an officer read the suicide note in its entirety, wherein defendant indicated that he had been raping and sexually abusing the victim for six years, that he had impregnated her and subsequently killed the baby. As part of the ensuing investigation, police obtained a statement from the victim—then 18 years of age and attending college—wherein she corroborated the prolonged sexual abuse referenced in defendant's suicide note, including the fact that, for a period of years, defendant had forced her to, among other things, engage in sexual intercourse and oral sexual conduct, had impregnated her, forced her to conceal her pregnancy and later killed the baby shortly after she gave birth.

Defendant was thereafter indicted and charged with murder in the second degree, predatory sexual assault against a child, course of sexual conduct against a child in the first degree, rape in the first degree (two counts), rape in the second degree, criminal sexual act against a child and endangering the welfare of a child. Defendant's motions challenging the grand jury proceedings as procedurally defective and seeking suppression of his statement made to law enforcement while in the hospital were both subsequently denied. The action was thereafter removed from County Court to Supreme Court.¹ Following a nonjury trial, Supreme Court found defendant guilty of murder in the second degree, predatory sexual assault against a child, course of sexual conduct against a child in the first degree, rape in the first degree (two counts), rape in the second degree and endangering the welfare of a child. Defendant was thereafter sentenced, as a second felony offender, to an aggregate prison term of 100 years to life. Supreme Court subsequently granted defendant's CPL article 440 motion and vacated the sentence initially imposed inasmuch as defendant had been improperly sentenced as a second felony offender. Defendant was then resentenced and again received an aggregate prison term of 100 years to life.² Defendant now appeals.

Defendant contends that the verdict was not supported by legally sufficient evidence and was against the weight of the evidence. When considering a challenge to the legal sufficiency of the evidence, we view the evidence in the light most favorable to the People and evaluate whether "there is any valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial and as a matter of law satisfy the proof and burden requirements for every element of the crime charged" ( People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] [internal citation omitted]; see People v. Ramos, 19 N.Y.3d 133, 136, 946 N.Y.S.2d 83, 969 N.E.2d 199 [2012] ; People v. Warrington, 146 A.D.3d 1233, 1235, 45 N.Y.S.3d 683 [2017], lv denied 29 N.Y.3d 1038, 62 N.Y.S.3d 307, 84 N.E.3d 979 [2017] ). Moreover, in assessing the weight of the evidence, where, as here, a different verdict would not have been unreasonable, this Court "must, like the trier of fact below, weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony" ( People v. Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [internal quotation marks and citation omitted]; see People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ).

Defendant initially contends that his conviction for predatory sexual assault against a child was not supported by legally sufficient evidence because there was insufficient evidence establishing that the victim was less than 13 years old at the time the alleged sexual conduct occurred. As relevant here, to establish a conviction for predatory sexual assault against a child, the People were required to prove that defendant, being more than 18 years old and "over a period of time not less than three months in duration[,] ... engage [d] in two or more acts of sexual conduct, which include[d] at least one act of sexual intercourse [or] oral sexual conduct" with a child under age 13 ( Penal Law § 130.75[1][b] ; see Penal Law § 130.96 ). The trial evidence established that the victim was born on February 16, 1995. The victim testified that defendant began sexually abusing her when she was 11 years old while she and her family lived on Pleasant Street in Schenectady. The victim testified that the first instance of abuse occurred shortly after her biological father had been murdered in June 2006 and around the time that she started sixth grade in September 2006.³ The victim testified that, while still living on Pleasant Street, the sexual abuse escalated after defendant showed her a pornographic video depicting a stepfather and stepdaughter engaging in sexual intercourse. The victim testified that, the following day, and continuing for years thereafter, defendant began having vaginal intercourse with her. The victim testified that, between September 2006 and September 2007, defendant had sexual intercourse with her more than 20 times and also began having her perform oral sex on him.⁴ Defendant's girlfriend, who was the victim's mother, corroborated the relevant time frame, testifying that their family resided in a house on Pleasant Street between 2006 and 2007. The time frame also coincides with defendant's December 2013 suicide note wherein he admitted that he had been raping and sexually abusing the victim for six years. Accordingly, we find that the verdict as to count 2 was supported by legally sufficient evidence (see People v. Kalina, 149 A.D.3d 1264, 1265–1266, 52 N.Y.S.3d 523 [2017], lv denied 29 N.Y.3d 1092, 63 N.Y.S.3d 9, 85 N.E.3d 104 [2017] ; People v. Sorrell, 108 A.D.3d 787, 788–789, 969 N.Y.S.2d 198 [2013], lv denied 23 N.Y.3d 1025, 992 N.Y.S.2d 808, 16 N.E.3d 1288 [2014] ).

Defendant also contends that the verdict as to counts 4 and 5 of the indictment charging him with rape in the first degree was not supported by legally sufficient evidence and was against the weight of the evidence based upon insufficient proof being adduced as to forcible compulsion. Although defendant failed to preserve the legal sufficiency argument with respect to count 5, "our weight of the evidence review necessarily involves an evaluation of whether all elements of the charged crime [s] were proven beyond a reasonable doubt at trial" ( People v. Lancaster, 143 A.D.3d 1046, 1047, 41 N.Y.S.3d 129 [2016] [internal quotation marks and citation omitted], lv denied 28 N.Y.3d 1147, 52 N.Y.S.3d 298, 74 N.E.3d 683 [2017] ). As relevant here, "[a] person is guilty of rape in the first degree when he or she engages in sexual intercourse with another person ... [b]y forcible compulsion" ( Penal Law § 130.35[1] ). Forcible compulsion includes the "use of physical force" or "a threat, express or implied, which places a person in fear of immediate death or physical injury to himself, herself or another person" ( Penal Law § 130.00[8][a], [b] ). In determining whether forcible compulsion has been established, the controlling factor is the state of mind that the defendant's actions created in the victim based on a review of such relevant factors as "the age of the victim, the relative size and strength of the defendant and victim, and the nature of the defendant's relationship to the victim" ( People v. Melendez, 138 A.D.3d 1159, 1160, 29 N.Y.S.3d 618 [2016] [internal quotation marks and citations omitted], lv denied 27 N.Y.3d 1136, 39 N.Y.S.3d 118, 61 N.E.3d 517 [2016] ; see People v. Porter, 82 A.D.3d 1412, 1413, 918 N.Y.S.2d 670 [2011], lv denied 16 N.Y.3d 898, 926 N.Y.S.2d 34, 949 N.E.2d 982 [2011] ; People v. Littebrant, 55 A.D.3d 1151, 1155, 867 N.Y.S.2d 550 [2008], lv denied 12 N.Y.3d 818, 881 N.Y.S.2d 26, 908 N.E.2d 934 [2009] ).

Here, the victim testified that, prior to defendant's sexual abuse, they shared a "normal father-daughter relationship," but, beginning while the family lived on Pleasant Street, defendant began using sexual abuse as a punishment against the victim.⁵ The victim recounted that if she did not perform sexual acts on defendant, he would beat her "like [she] was his size."

The victim also indicated that defendant told her that if she...