People v. Sposito

• Decision Date: 09 June 2016
• Citation: 140 A.D.3d 1308,2016 N.Y. Slip Op. 04467,32 N.Y.S.3d 736
• Parties: The PEOPLE of the State of New York, Respondent, v. Joseph SPOSITO, Appellant.
• Court: New York Supreme Court — Appellate Division

140 A.D.3d 1308

32 N.Y.S.3d 736

2016 N.Y. Slip Op. 04467

The PEOPLE of the State of New York, Respondent,

v.Joseph SPOSITO, Appellant.

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

June 9, 2016.

E. Stewart Jones, PLLC, Troy (James C. Knox of counsel), for appellant.

P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), for respondent.

Before: McCARTHY, J.P., GARRY, EGAN JR., DEVINE and AARONS, JJ.

McCARTHY

, J.P.

Appeals (1) from a judgment of the County Court of Albany County (Herrick, J.), rendered June 6, 2012, upon a verdict convicting defendant of the crimes of rape in the first degree and criminal sexual act in the first degree, (2) from an order of said court, entered April 5, 2013, which denied defendant's motion pursuant to CPL 440.30(1–a)

for the performance of forensic DNA testing on specified evidence, and (3) by permission, from an order of said court, entered April 24, 2014, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.

Defendant was indicted in February 2011 for the crimes of rape in the first degree, criminal sexual act in the first degree and tampering with physical evidence. The charges stemmed from allegations that defendant engaged in sexual intercourse and anal sexual conduct with the victim, who was incapable of consent by virtue of being physically helpless due to alcohol consumption, and that he thereafter destroyed physical evidence related thereto. At the conclusion of the trial, defendant was found guilty of rape in the first degree and criminal sexual act in the first degree, and he was subsequently sentenced to an aggregate prison term of 20 years to be followed by 15 years of postrelease supervision. Thereafter, defendant moved, pursuant to CPL 440.30(1–a)

, for the performance of forensic DNA testing on specified items of clothing, which motion County Court denied. Approximately a year later, defendant moved, pursuant to CPL 440.10, to vacate the judgment of conviction on the ground that he was denied the effective assistance of counsel, which motion the court also denied. Defendant now appeals from the judgment of conviction and the denial of his request for forensic DNA testing and, by permission, from the denial of his motion to vacate.

Contrary to defendant's contention, the convictions are supported by legally sufficient evidence and are not against the weight of the evidence. With respect to the crime of rape in the first degree, an individual is guilty of such crime “when he or she engages in sexual intercourse with another person ... [w]ho is incapable of consent by reason of being physically helpless” (Penal Law § 130.35[2]

; see

People v. Shepherd, 83 A.D.3d 1298, 1298, 921 N.Y.S.2d 666 [2011], lv. denied 17 N.Y.3d 809, 929 N.Y.S.2d 569, 953 N.E.2d 807 [2011] ). With respect to the crime of criminal sexual act in the first degree, a person is guilty of such crime “when he or she engages in ... anal sexual conduct with another person ... [w]ho is incapable of consent by reason of being physically helpless” (Penal Law § 130.50[2] ). “ ‘Anal sexual conduct’ means conduct between persons consisting of contact between the penis and anus” (Penal Law § 130.00[2][b] ). With respect to both offenses, a person is physically helpless if he or she is “unconscious or for any other reason is physically unable to communicate unwillingness to an act” (Penal Law § 130.00[7] ; see

People v. Bjork, 105 A.D.3d 1258, 1260, 963 N.Y.S.2d 472 [2013], lv. denied 21 N.Y.3d 1040, 972 N.Y.S.2d 538, 995 N.E.2d 854 [2013], cert. denied ––– U.S. ––––, 134 S.Ct. 1306, 188 L.Ed.2d 328 [2014] ). As to defendant's affirmative defense, where a “victim's lack of consent is based solely upon his or her incapacity to consent because he or she was ... physically helpless, it is an affirmative defense that the defendant, at the time he or she engaged in the conduct constituting the offense, did not know of the facts or conditions responsible for such incapacity to consent” (Penal Law § 130.10[1] ). A defendant bears the burden of establishing such defense by a preponderance of the evidence (see Penal Law § 25.00[2] ; People v. Bjork, 105 A.D.3d at 1262, 963 N.Y.S.2d 472 ).

Proof at trial established that defendant and the victim socialized with a group of common friends during a day and evening that included the consumption of alcohol. As to the issue of the victim's helplessness during the sexual encounter that took place in the early hours of the next morning, a forensic toxicologist reviewed blood samples taken from the victim shortly after that encounter. Based on those samples, the expert opined that the victim had an estimated blood alcohol content of .266 at the time of the sexual encounter. According to the expert, that blood alcohol content would have placed a person in a “stupor” stage, marked by “a lack of consciousness, unconsciousness.” Other witnesses painted a similar picture of the victim's capacity on the night and early morning in question. They described that, as the victim continued to consume alcohol, she began falling, stumbling and vomiting. After the victim had fallen asleep at one point, friends had difficulty waking her up. As is particularly notable, to the extent that the victim's friends were able to rouse her, she was still unable to make coherent statements. When her friends needed to move her to different sleeping accommodations, one testified that the victim was “basically carr[ied]” to that bedroom, where she was put to bed with her clothes on. Shortly thereafter, defendant sought out the victim and engaged in sexual acts with her.

According to the victim, her last clear recollection of the night leading up to the sexual encounter was being at a bar and feeling unwell. After that, the victim remembered “com[ing] to” in a bathroom of a home, naked and covered with blood, with “a guy ... [she had] never seen before.” The victim described “thick blood everywhere” and feeling like her “uterus fell out of [her] body.” At this point, the man with her told her that she could not leave until she took a shower and cleaned up. According to the victim, when she saw an opportunity, she fled from the man and sought help. The registered nurse who subsequently administered the sexual assault examination upon the victim explained that the victim had damage to her vaginal and anal walls consistent with blunt force trauma. The same nurse noted that the victim had bruising on her arms and thigh. Summarizing her findings, the nurse explained that she had “seen a lot of cases,” but that she had “never seen [as] much trauma to [the vaginal and anal] areas [as she] did in [the victim's] case.”¹ Considering the trial evidence, defendant's convictions are supported by legally sufficient evidence (see People v. Fuller, 50 A.D.3d 1171, 1174, 854 N.Y.S.2d 594 [2008]

, lv. denied 11 N.Y.3d 788, 866 N.Y.S.2d 614, 896 N.E.2d 100 [2008] ; People v. Wicks, 73 A.D.3d 1233, 1234, 900 N.Y.S.2d 485 [2010], lv. denied 15 N.Y.3d 857, 909 N.Y.S.2d 34, 935 N.E.2d 826 [2010] ; People v. Stasiak, 25 A.D.3d 1025, 1026, 808 N.Y.S.2d 819 [2006] ). Further, deferring to the jury's decision to credit the victim and the expert evidence over defendant's self-serving and uncorroborated testimony that the victim was coherent and willingly engaged in the intercourse, the convictions are not against the weight of the evidence (see

People v. Bjork, 105 A.D.3d at 1261–1262, 963 N.Y.S.2d 472 ).

Further, although the People improperly vouched for the credibility of the victim's testimony during summation, that misconduct did not rise to the level of depriving defendant of a fair trial (see People v. Fiorino, 130 A.D.3d 1376, 1380, 15 N.Y.S.3d 498 [2015]

, lv. denied

26 N.Y.3d 1087, 23 N.Y.S.3d 644, 44 N.E.3d 942 [2015] ; People v. Green, 119 A.D.3d 23, 30, 984 N.Y.S.2d 680 [2014], lv. denied 23 N.Y.3d 1062, 994 N.Y.S.2d 321, 18 N.E.3d 1142 [2014] ). In addition, in light of the fact that defendant committed the crimes at issue in a particularly violent and injurious manner—facts not accounted for by the elements of those crimes—we reject defendant's contention that his sentence, which is less than the statutory maximum, is harsh or excessive (see

People v. Thiel, 134 A.D.3d 1237, 1241, 21 N.Y.S.3d 745 [2015] ).

Likewise, defendant's argument that County Court erred in denying his motion for postverdict DNA testing for the victim's clothing is without merit. Defendant contends that such testing could prove that the victim had sexual intercourse with someone other than defendant hours prior to his sexual intercourse with her, and that if this unknown party caused the injuries to the victim then it would have “reduced or even eliminated” defendant's culpability. However, proof that would have supported defendant's speculation² in this regard would not have shown the victim to be any less physically helpless during the sexual encounter. Accordingly, the presence of DNA from an unknown third person on the victim's clothing would not create a reasonable probability of a verdict more favorable to defendant and, therefore, County Court properly denied defendant's motion for DNA testing (see People v. Brown, 36 A.D.3d 961, 962, 827 N.Y.S.2d 742 [2007]

, lvs. denied 8 N.Y.3d 919, 920, 834 N.Y.S.2d 510, 866 N.E.2d 456 [2007] ; People v. De Oliveira, 223 A.D.2d 766, 768, 636 N.Y.S.2d 441 [1996], lv. denied 88 N.Y.2d 1020, 651 N.Y.S.2d 19, 673 N.E.2d 1246 [1996] ; see also

People v. Dearstyne, 305 A.D.2d 850, 853, 761 N.Y.S.2d 118 [2003], lv. denied 100 N.Y.2d 593, 766 N.Y.S.2d 169, 798 N.E.2d 353 [2003] ).

In addition, we discern nothing in the trial record sufficient to support defendant's contention on his direct appeal from the judgment of conviction that he received ineffective assistance of counsel. “[I]t is incumbent on [a] defendant to demonstrate the absence of strategic or other legitimate explanations for counsel's [alleged shortcomings]...