People v. Tunstall

• Decision Date: 13 April 2017
• Parties: The PEOPLE of the State of New York, Respondent, v. Tony TUNSTALL, Appellant.
• Court: New York Supreme Court — Appellate Division

149 A.D.3d 1249
51 N.Y.S.3d 689

The PEOPLE of the State of New York, Respondent,
v.
Tony TUNSTALL, Appellant.

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

April 13, 2017.

51 N.Y.S.3d 690

Kathryn S. Dell, Troy, for appellant.

Joel E. Abelove, District Attorney, Troy (Vincent J. O'Neill of counsel), for respondent.

Before: GARRY, J.P., LYNCH, CLARK, MULVEY and AARONS, JJ.

GARRY, J.P.

Appeal from a judgment of the County Court of Rensselaer County (Ceresia, J.), rendered April 29, 2013, upon a verdict convicting defendant of the crime of sexual abuse in the first degree.

In August 2012, defendant allegedly broke into the victim's apartment and forcibly penetrated her vaginally and anally with his fingers and orally with his penis. He was indicted on charges of attempted criminal sexual act in the first degree, sexual abuse in the first degree and burglary in the second degree. Following a jury trial, he was convicted of sexual abuse in the first degree, acquitted of the remaining charges and sentenced to a prison term of seven years, to be followed by 15 years of postrelease supervision. Defendant appeals.

Defendant contends that the verdict is not supported by legally sufficient evidence and is against the weight of the evidence, in that the People failed to prove his identity as the perpetrator of the crime. Specifically, he argues that the victim was unable to identify him as her attacker in a showup identification conducted shortly after the incident, and that she likewise failed to identify him in the courtroom during the trial. Contrary to the People's argument, defendant properly preserved his legal sufficiency claim by making a motion to dismiss that was "specifically directed" at the issue he now raises upon appeal (People v. Abar, 42 A.D.3d 676, 677, 838 N.Y.S.2d 739 [2007] )—that is, the alleged lack of sufficient evidence establishing defendant's identity.

The People presented the testimony of the victim, the victim's paramour, the victim's daughter, an emergency room nurse who treated the victim and several police officers and forensic scientists. Taken together, their testimony established that, on an evening in August 2012, the victim and the paramour spent several hours drinking beer and smoking crack cocaine with defendant at the apartment where the victim and the paramour resided. At approximately 9:00 p.m., the paramour left the apartment to visit a relative. He instructed defendant to leave as well, but defendant allegedly responded that he was too intoxicated to walk to his girlfriend's nearby apartment and asked to stay at the couple's apartment until he sobered up. The paramour gave defendant a blanket and pillow and told him that he could sleep on an outside porch. Defendant and the paramour left the apartment, the paramour locked the door, and the victim lay down on the living room couch to go to sleep.

The victim testified that she heard defendant knocking on the door that connected the porch to the living room, but did not answer the door because she did not want him inside the apartment. She fell asleep and soon thereafter "woke up to [defendant's] hand on [her] face." She said that she recognized her attacker as the same person with whom she and the paramour had been smoking and drinking earlier that evening. She testified that, although she struggled with her attacker, he was able to penetrate her vagina and anus with

51 N.Y.S.3d 691

his fingers with enough force to lift her two inches off the couch. She was briefly able to free herself, but he punched her in the head, grabbed the back of her head and pushed her mouth onto his penis. The attack ended after the victim struck defendant in the head with an object. The victim then called her daughter, who testified that the victim was screaming and so upset that she had difficulty breathing. According to the...