People v. Rosa

• Decision Date: 16 June 2022
• Docket Number: 111190
• Citation: 206 A.D.3d 1253,171 N.Y.S.3d 227
• Parties: The PEOPLE of the State of New York, Respondent, v. Derrick ROSA, Appellant.
• Court: New York Supreme Court — Appellate Division

206 A.D.3d 1253

171 N.Y.S.3d 227

The PEOPLE of the State of New York, Respondent,

v.Derrick ROSA, Appellant.

111190

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

Calendar Date: April 28, 2022

Decided and Entered: June 16, 2022

Richard L. Herzfeld, New York City, for appellant.

P. David Soares, District Attorney, Albany (Vincent Stark of counsel), for respondent.

Before: Egan Jr., J.P., Clark, Reynolds Fitzgerald, Fisher and McShan, JJ.

MEMORANDUM AND ORDER

McShan, J. Appeal from a judgment of the County Court of Albany County (Carter, J.), rendered February 8, 2019, upon a verdict convicting defendant of the crimes of criminal sexual act in the first degree, criminal sexual act in the second degree, rape in the first degree (two counts), rape in the second degree, rape in the third degree and endangering the welfare of a child (two counts).

In March 2018, defendant was charged by indictment with criminal sexual act in the first degree, criminal sexual act in the second degree, rape in the first degree (two counts), rape in the second degree, rape in the third degree and endangering the welfare of a child (two counts). The charges stemmed from allegations that defendant subjected the victim to various sexual acts beginning in October 2014, when she was 14 years old, with the last incident occurring in August 2017. Following a jury trial, defendant was convicted as charged. He was sentenced, as a second felony offender, to consecutive prison terms of 25 years followed by 25 years of postrelease supervision upon the convictions of criminal sexual act in the first degree (count 1) and rape in the first degree (count 3) and to equal or lesser concurrent terms on all remaining convictions with the exception of the two convictions of endangering the welfare of a child, for which he received time served. Defendant appeals.

County Court did not err in declining to dismiss the indictment for duplicitousness. A count of an indictment is duplicitous if it charges more than one offense (see CPL 200.30[1] ; People v. Alonzo, 16 N.Y.3d 267, 269, 920 N.Y.S.2d 302, 945 N.E.2d 495 [2011] ). "Where a crime is completed by a discrete act, and where a count in the indictment is based on the repeated occurrence of that act over a course of time, the count includes more than a single offense and is duplicitous" ( People v. Black, 65 A.D.3d 811, 813, 884 N.Y.S.2d 292 [2009] [citation omitted], lv. denied 13 N.Y.3d 905, 895 N.Y.S.2d 319, 922 N.E.2d 908 [2009] ; see People v. Keindl, 68 N.Y.2d 410, 417–418, 509 N.Y.S.2d 790, 502 N.E.2d 577 [1986] ; People v. Holtslander, 189 A.D.3d 1701, 1702, 135 N.Y.S.3d 681 [2020] ). " ‘Even if a count facially charges one criminal act, that count is duplicitous if the evidence makes plain that multiple criminal acts occurred during the relevant time period, rendering it nearly impossible to determine the particular act upon which the jury reached its verdict’ " ( People v. Gannon, 174 A.D.3d 1054, 1057, 104 N.Y.S.3d 770 [2019] [citation omitted], lv denied 34 N.Y.3d 980, 113 N.Y.S.3d 632, 137 N.E.3d 2 [2019], quoting People v. Dalton, 27 A.D.3d 779, 781, 811 N.Y.S.2d 153 [2006], lvs denied 7 N.Y.3d 754, 811, 819 N.Y.S.2d 880, 822 N.Y.S.2d 486, 853 N.E.2d 251, 855 N.E.2d 802 [2006]; see People v. Madsen, 168 A.D.3d 1134, 1137–1138, 90 N.Y.S.3d 396 [2019] ).

Counts 1 and 2 charged criminal sexual act in the first and second degrees based, respectively, on the theories of forcible compulsion and the age of the victim. Both counts arose out of the same conduct, alleged to have been committed on an evening between October 9, 2014 and October 31, 2014. Counts 3 and 4 charged rape in the first and second degrees based, respectively, on the theories of forcible compulsion and the age of the victim, related to conduct that occurred on a particular evening between November 27, 2014 and December 25, 2014. Counts 5 and 6 charged rape in the first and third degrees based, respectively, on the theories of forcible compulsion and the age of the victim, related to conduct that occurred on August 22, 2017. Inasmuch as counts 1 through 6 each charged defendant with committing a particular offense by engaging in a single sexual act during a specified time period, they are not facially duplicitous (see People v. Keindl, 68 N.Y.2d at 417–418, 509 N.Y.S.2d 790, 502 N.E.2d 577 ; People v. Farbman, 231 A.D.2d 588, 589, 647 N.Y.S.2d 790 [1996], lv denied 89 N.Y.2d 863, 653 N.Y.S.2d 286, 675 N.E.2d 1239 [1996] ; see also People v. Bennett, 52 A.D.3d 1185, 1186, 859 N.Y.S.2d 836 [2008], lv denied 11 N.Y.3d 734, 864 N.Y.S.2d 393, 894 N.E.2d 657 [2008] ; People v. Weber, 25 A.D.3d 919, 922, 807 N.Y.S.2d 222 [2006], lv denied 6 N.Y.3d 839, 814 N.Y.S.2d 88, 847 N.E.2d 385 [2006] ). Count 7 charged endangering the welfare of a child related to certain conduct toward the victim, and count 8 charged endangering the welfare of a child related to certain conduct toward the victim's relative. "The general rule that a count is duplicitous if it charges more than one crime ‘does not apply to continuing crimes, such as ... endangering the welfare of a child’ " ( People v. Hughes, 114 A.D.3d 1021, 1024, 981 N.Y.S.2d 158 [2014], lv denied 23 N.Y.3d 1038, 993 N.Y.S.2d 251, 17 N.E.3d 506 [2014], quoting People v. Dalton, 27 A.D.3d at 781, 811 N.Y.S.2d 153 ; see People v. Keindl, 68 N.Y.2d at 421–422, 509 N.Y.S.2d 790, 502 N.E.2d 577 ; People v. Errington, 121 A.D.3d 1553, 1554, 993 N.Y.S.2d 839 [2014], lv denied 25 N.Y.3d 1163, 15 N.Y.S.3d 295, 36 N.E.3d 98 [2015] ).

Nor did the victim's trial testimony render any of the counts duplicitous. At trial, the victim testified as to three distinct incidents of sexual abuse perpetrated upon her by defendant. She testified to an incident that occurred between October 9, 2014 and Halloween of that same year (October 31, 2014) in which defendant forced her, for the first time, to perform oral sex on him. This specific criminal act corresponded with counts 1 and 2 of the indictment. The victim also provided detailed testimony concerning the first time that defendant forced her to have sexual intercourse. She specified that the incident occurred "around Christmas time" in 2014, recalling that "[t]he Christmas tree was lit up" and presents were still under it. Defendant's wife testified that the Christmas tree was always put up "around Thanksgiving," meaning that the intercourse occurred between November 27, 2014 and December 25, 2014.¹ This criminal act corresponded with counts 3 and 4. The victim finally described the rape that occurred on August 22, 2017 at the hands of defendant, which she reported to police the following day and thereafter resulted in defendant's arrest. This criminal act corresponded with counts 5 and 6.

Contrary to defendant's contention, the indictment was not rendered duplicitous by virtue of the victim's statement that he engaged in sexual intercourse with her "every day" following the first rape. Such testimony related to the charge of endangering the welfare of a child contained in count 7, which was based upon defendant's conduct toward the victim between December 26, 2014 (the day after the time period encompassing the first rape) through August 21, 2017 (the day before the last rape). Indeed, this was the only count of the indictment charging criminal conduct toward the victim during this time period. During summation, the People specifically tied counts 1 through 6 to the three distinct incidents of sexual abuse testified to by the victim, and further articulated to the jury that the count of endangering the welfare of a child pertaining to the victim covered "the sexual assaults that occurred after the first time [defendant] raped [the victim] and before the last time he raped her" (see People v. Gannon, 174 A.D.3d at 1057, 104 N.Y.S.3d 770 ). County Court likewise linked the instance of oral sexual conduct and the two acts of vaginal intercourse to the different counts of the indictment when instructing the jury (see People v. Sinha, 84 A.D.3d 35, 45, 922 N.Y.S.2d 275 [2011], affd 19 N.Y.3d 932, 951 N.Y.S.2d 697, 976 N.E.2d 223 [2012] ; compare People v. Madsen, 168 A.D.3d at 1138–1139, 90 N.Y.S.3d 396 ; People v. Black, 65 A.D.3d at 814, 884 N.Y.S.2d 292 ). As the victim's testimony neither called upon defendant to answer for more than one offense per count nor made it impossible to determine the particular sexual acts as to which the jury reached a unanimous verdict, the indictment was not duplicitous (see People v. Gannon, 174 A.D.3d at 1057, 104 N.Y.S.3d 770 ; People v. Weber, 25 A.D.3d at 922, 807 N.Y.S.2d 222 ).

Defendant also argues that County Court erred in denying his challenges for cause to two prospective jurors. Either party may challenge a prospective juror for cause where the juror "has a state of mind that is likely to preclude him [or her] from rendering an impartial verdict based upon the evidence adduced at the trial" ( CPL 270.20[1][b] ). "If a prospective juror makes statements that raise a serious doubt regarding his or her ability to be impartial, the trial court should conduct a follow-up inquiry regarding the preexisting opinion and must excuse the juror unless he or she states unequivocally on the record that he or she can be fair and impartial" ( People v. Rios, 192 A.D.3d 1336, 1337, 145 N.Y.S.3d 623 [2021] [internal quotation marks and citations omitted]; see People v. Patterson, 34 N.Y.3d 1112, 1113, 117 N.Y.S.3d 660, 140 N.E.3d 982 [2019] ; People v. Warrington, 28 N.Y.3d 1116, 1119–1120, 45 N.Y.S.3d 345, 68 N.E.3d 70 [2016] ).

During voir dire, defense counsel asked prospective juror No. 295, "[D]o you think that just because [defendant] is sitting here with me that something must have happened that's bad?" This prospective juror answered, "Generally, yes, something has occurred to put him in this situation. Whether or not he is actually guilty of it, that's what we're here to determine." When asked to elaborate on her...