People v. Terry

• Decision Date: 30 June 2011
• Parties: The PEOPLE of the State of New York, Respondent,v.Duncan TERRY, Appellant.
• Court: New York Supreme Court — Appellate Division

85 A.D.3d 1485
926 N.Y.S.2d 216
2011 N.Y. Slip Op. 05585

The PEOPLE of the State of New York, Respondent,
v.
Duncan TERRY, Appellant.

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

June 30, 2011.

[926 N.Y.S.2d 217]

Neal D. Futerfas, White Plains, for appellant.P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), for respondent.Before: MERCURE, J.P., PETERS, LAHTINEN, MALONE JR. and STEIN, JJ.PETERS, J.

[85 A.D.3d 1485] Appeal from a judgment of the Supreme Court (Lamont, J.), rendered January 30, 2009 in Albany County, upon a verdict convicting defendant of the crime of rape in the first degree.

[85 A.D.3d 1486] On January 29, 2008, defendant and the victim were engaging in consensual sexual intercourse when, according to the victim, defendant became physically and verbally aggressive and refused her requests to stop. Defendant was thereafter indicted for rape in the first degree and rape in the third degree. Following a jury trial, he was convicted of rape in the first degree and sentenced, as a second felony offender, to 21 years in prison with five years of postrelease supervision. He now appeals.

We are unpersuaded by defendant's contention that County Court erred in determining that he was competent to stand trial. Two mental health professionals who examined defendant concluded that, notwithstanding his long history of mental illness, defendant understood the judicial process, the charges against him and the people involved in the case, and that he was capable of assisting in his own defense ( see CPL 730.10[1] ). Based upon this evidence, we discern no abuse of discretion by Supreme Court in finding defendant fit to stand trial ( see People v. Dewey, 18 A.D.3d 894, 895, 795 N.Y.S.2d 111 [2005]; People v. Ciborowski, 302 A.D.2d 620, 621–622, 755 N.Y.S.2d 113 [2003], lv. denied 100 N.Y.2d 579, 764 N.Y.S.2d 389, 796 N.E.2d 481 [2003];

[926 N.Y.S.2d 218]

People v. Campbell, 279 A.D.2d 797, 798, 718 N.Y.S.2d 744 [2001], lv. denied 96 N.Y.2d 826, 729 N.Y.S.2d 446, 754 N.E.2d 206 [2001] ).

Defendant next maintains that the verdict is not supported by legally sufficient evidence and is against the weight of the evidence. His general objection at trial that the People did not present a prima facie case was insufficient to preserve for our review his challenge to the legal sufficiency of the evidence ( see People v. Phelan, 82 A.D.3d 1279, 1281 n., 918 N.Y.S.2d 608 [2011]; People v. Adamek, 69 A.D.3d 979, 980, 892 N.Y.S.2d 628 [2010], lv. denied 14 N.Y.3d 797, 899 N.Y.S.2d 131, 925 N.E.2d 935 [2010] ). With respect to his challenge to the weight of the evidence, inasmuch as a different verdict would not have been unreasonable, we “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. Romero, 7 N.Y.3d 633, 643, 826 N.Y.S.2d 163, 859 N.E.2d 902 [2006] [internal quotation marks and citations omitted]; see People v. Shepherd, 83 A.D.3d 1298, 1298, 921 N.Y.S.2d 666 [2011] ).

As relevant here, a defendant is guilty of the crime 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] ). At trial, the victim testified that she invited defendant, who she had previously met at a Narcotics Anonymous meeting, to her home on January 29, 2008 after he called her and told her that he was near her house and had a desire to use drugs. After he arrived, they started kissing and moved into the victim's bedroom where they began having consensual sexual [85 A.D.3d 1487] intercourse. The victim stated that, after approximately one or two minutes, defendant began pulling her hair, choking her, hitting her, calling her vulgar names, spitting on her and biting her. She testified that, although she struggled and repeatedly asked defendant to stop, he told her to shut up. The victim stated that she ultimately stopped struggling, explaining that she felt “he might kill [her]” if she kept resisting.

Defendant, on the other hand, testified that he and the victim had consensual sexual intercourse at her apartment on two separate occasions after being introduced at a Narcotics Anonymous meeting. He conceded biting, striking and spitting on the victim during sex, but testified that he only did so at her specific request. However, defendant also admitted having problems with impulse control and difficulty recalling the particulars of the events in question.¹ Faced with these differing version of events, the jury chose to credit the testimony of the victim and we find no basis to disturb its determination ( see People v. Shepherd, 83 A.D.3d at 1299, 921 N.Y.S.2d 666; People v. Sensourichanh, 290 A.D.2d 886, 887–888, 737 N.Y.S.2d 670 [2002] ). Evaluating the evidence in a neutral light and deferring to the jury's superior position to determine witness credibility, we find...