People v. Tubbs

• Decision Date: 06 March 2014
• Parties: The PEOPLE of the State of New York, Respondent, v. Richard C. TUBBS, Appellant.
• Court: New York Supreme Court — Appellate Division

115 A.D.3d 1009
981 N.Y.S.2d 830
2014 N.Y. Slip Op. 01479

The PEOPLE of the State of New York, Respondent,
v.
Richard C. TUBBS, Appellant.

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

March 6, 2014.

[981 N.Y.S.2d 831]

Randolph V. Kruman, Cortland, for appellant.

Kirk O. Martin, District Attorney, Owego (Irene C. Graven of counsel), for respondent.

Before: PETERS, P.J., LAHTINEN, STEIN and EGAN JR., JJ.

LAHTINEN, J.

Appeal from a judgment of the County Court of Tioga County (Sgueglia, J.), rendered December 2, 2011, upon a verdict convicting defendant of the crime of rape in the third degree.

Defendant, who was then 24 years old, allegedly had sexual intercourse with a then 15–year–old female in December 2009, February 2010 and March 2010. He was indicted on three counts of rape in the third degree. A jury found him guilty of the first count arising from the December

[981 N.Y.S.2d 832]

2009 incident, but acquitted him of the other two counts. Defendant's CPL article 330 motion to set aside the verdict upon the ground of, among other things, juror misconduct was denied following a hearing. County Court sentenced him to eight months in jail. Defendant now appeals.

We consider first defendant's arguments that the verdict was not supported by legally sufficient evidence and that it was against the weight of the evidence. “In evaluating the legal sufficiency of the evidence, we view it in a light most favorable to the People and will not disturb a verdict as long as there is a ‘valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury’ ” ( People v. Blond, 96 A.D.3d 1149, 1151, 946 N.Y.S.2d 663 [2012],lv. denied19 N.Y.3d 1101, 955 N.Y.S.2d 556, 979 N.E.2d 817 [2012], quoting People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). The ages of defendant and the victim were established, and the victim testified regarding her relationship with defendant, including having sexual intercourse with him in his bedroom at the home where he resided during the evening of December 5, 2009 when several friends were in the home for a party. Two party attendees testified to accidentally walking in on defendant and the victim while they were engaged in sexual intercourse in his bedroom that evening. The proof was legally sufficient.

In our weight of the evidence review, 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. Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672, quoting People ex rel. MacCracken v. Miller, 291 N.Y. 55, 62, 50 N.E.2d 542 [1943] ). Defendant produced several witnesses, mostly family members, who stated that he had left the party before the time when the victim claimed that the sexual intercourse had occurred. His witnesses challenged other aspects of the People's proof, including whether the two individuals who testified that they had observed the sexual activity were actually at the party on the evening in question. Where, as here, credibility issues are presented, “deference is accorded to the fact-finder's opportunity to view the witnesses, hear the testimony and observe demeanor” ( People v. Romero, 7 N.Y.3d 633, 644, 826 N.Y.S.2d 163, 859 N.E.2d 902 [2006] [internal quotation marks and citation omitted] ). After reviewing the proof in the record and finding no reason to disregard the jury's credibility determinations, we are unpersuaded that the verdict was against the weight of the evidence.

Defendant contends that County Court gave an improper definition of reasonable doubt. The focus of defendant's argument appears to be comments by the court during voir dire. However, when read in context, those comments were directed at informing potential jurors that the standard was not one of absolute certainty and ensuring that, if selected, they would follow the court's instructions on reasonable doubt. The charge eventually given, without objection from counsel, provided in pertinent part: “A reasonable doubt is an actual doubt. In other words, you know you have a doubt. You don't have to look for it. You know you have a doubt that you're conscious of having after going over the entire case in your minds.... It is such a doubt as a reasonable person would entertain after careful and honest review and consideration of all of the evidence or lack of the evidence. Since it is a reasonable doubt, it is a doubt for which a reason could be given.” This

[981 N.Y.S.2d 833]

adequately explained the concept to the jury ( see People v. Antommarchi, 80 N.Y.2d 247, 251–252, 590 N.Y.S.2d 33, 604 N.E.2d 95 [1992];People v. Pochily, 255...