People v. Swinton

• Decision Date: 25 August 2011
• Citation: 2011 N.Y. Slip Op. 06325,928 N.Y.S.2d 693,87 A.D.3d 491
• Parties: The PEOPLE of the State of New York, Respondent,v.Reginald SWINTON, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

87 A.D.3d 491

928 N.Y.S.2d 693

2011 N.Y. Slip Op. 06325

The PEOPLE of the State of New York, Respondent,

v.Reginald SWINTON, Defendant–Appellant.

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

Aug. 25, 2011.

Robert S. Dean, Center for Appellate Litigation, New York (Carl S. Kaplan of counsel), for appellant.Reginald Swinton, appellant pro se.Cyrus R. Vance, Jr., District Attorney, New York (Gina Mignola of counsel), for respondent.ANDRIAS, J.P., CATTERSON, MOSKOWITZ, ABDUS–SALAAM, ROMÁN, JJ.

Judgment, Supreme Court, New York County (Daniel P. FitzGerald, J.), rendered May 24, 2007, convicting defendant, after a jury trial, of rape in the first degree (two counts), criminal sexual act in the first degree (three counts), burglary in the second degree (three counts), robbery in the third degree (two counts) and attempted robbery in the third degree, and sentencing him, as a persistent violent felony offender, to an aggregate term of 150 years to life, unanimously affirmed.

On July 15, 2005, by a 16–count indictment, defendant was charged with multiple counts of forcible rape, forcible criminal sexual act, burglary, robbery, and attempted robbery. Specifically, it was alleged that on three separate dates, over the course of two weeks, on the upper west and east sides of Manhattan and at approximately the same times, defendant broke into three separate premises, took money, and either sexually assaulted or raped the women whom he found inside.

At trial, with regard to the first incident, it was established that the assailant entered the victim's premises on East 89th Street through a window after she had gone to sleep, put a cushion over her face, asked for and took money from her purse, asked the victim to blindfold herself with her own shirt, threatened to kill her if she disobeyed, told her to “relax, relax” immediately prior to forcing her to have intercourse with him and then forced her to perform oral sex on him. With respect to the second incident, the evidence at trial established that the assailant entered the victim's premises on West 87th Street through a window after she had gone to sleep, put a pillow over her face, threatened to kill her if she disobeyed, asked the victim to blindfold herself with her husband's scarf, asked for and took money from her wallet, told her to “relax” before he forced her to have intercourse with him, and then forced her to perform oral sex. With regard to the third incident, the evidence at trial established that the assailant entered the victim's premises on East 89th Street through a window, again after she had gone to sleep, put a pillow over the victim's face, asked for and looked for money, threatened to kill her, asked the victim to blindfold herself with her own t-shirt, forced her to perform oral sex and, telling her to “relax” several times, tried to force her to have intercourse. None of the victims could identify defendant. A palmprint found at the premises where the first incident occurred matched defendant's palmprint. Semen discovered at the premises where the second incident occurred yielded DNA matching defendant's DNA. However, no physical evidence linked defendant to the crimes committed within the third premises.

Because the assailant's identity with respect to the third incident could not be independently established and because the assailant's conduct during all three incidents was so similar and distinctive, the trial court properly allowed the jury to consider the issue of defendant's identity as the perpetrator of the third incident through the use of the assailant's modus operandi ( People v. Beam, 57 N.Y.2d 241, 250–251, 455 N.Y.S.2d 575, 441 N.E.2d 1093 [1982]; People v. Allweiss, 48 N.Y.2d 40, 47, 421 N.Y.S.2d 341, 396 N.E.2d 735 [1979] ). Moreover, the trial court properly instructed the jury that it could not link defendant to the third crime merely because it concluded that he had a propensity for criminal activity, but could only do so if it found that defendant had committed either of the first two incidents and that the assailant who committed the third employed the same unique distinctive conduct ( see Beam at 250–253, 455 N.Y.S.2d 575, 441 N.E.2d 1093).

Defendant's contention that the crimes alleged and in particular the assailant's behavior during the crimes were neither similar nor unique enough to establish a pattern is meritless. On the contrary, all three incidents occurred within 15 days of each other and involved an assailant who broke into a premises through a window at night, covered his victim's face with a pillow or cushion, demanded that the victim blindfold herself with an article of her own clothing or clothing found within the victim's premises, repeatedly told each victim to “relax,” demanded money, threatened to kill the victim, forced the victim to perform oral sex, and either forced or tried to force the victim to engage in sexual intercourse. Thus, the assailant's behavior gave rise to a distinct pattern making it “highly probative of ... [his] identity” ( Beam at 253, 455 N.Y.S.2d 575, 441 N.E.2d 1093; People v. Phillips, 70 A.D.3d 562, 562, 895 N.Y.S.2d 81 [2010], lv. denied 16 N.Y.3d 799, 919 N.Y.S.2d 516, 944 N.E.2d 1156 [2011] [“(t)he first three robberies, occurring within a short time period and in the public areas of apartment buildings located within close geographic proximity, had many similarities that formed a ‘distinctive repetitive pattern’ ”]; People v. Bryant, 258 A.D.2d 293, 293, 685 N.Y.S.2d 194 [1999], lv. denied 93 N.Y.2d 1043, 697 N.Y.S.2d 875, 720 N.E.2d 95 [1999]; People v. West 160 A.D.2d 301, 301–302, ...