People v. Vail

• Decision Date: 31 July 2019
• Docket Number: 119,KA 17–00508
• Citation: 174 A.D.3d 1365,105 N.Y.S.3d 772
• Parties: The PEOPLE of the State of New York, Respondent v. Carlos A. VAIL, also known as Vail–Mateo, also known as Carlos Alvaro, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

174 A.D.3d 1365

105 N.Y.S.3d 772

The PEOPLE of the State of New York, Respondent

v.Carlos A. VAIL, also known as Vail–Mateo, also known as Carlos Alvaro, Defendant–Appellant.

119

KA 17–00508

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

Entered: July 31, 2019

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is reversed on the law and a new trial is granted.

Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of kidnapping in the first degree ( Penal Law § 135.25 [2 ][a] ). Defendant met an underage girl (victim) while living in Florida. Defendant helped the victim's family move to New York, began pursuing a romantic relationship with her, and remained in New York. The record reflects that, at some point thereafter, defendant decided to return to Florida. Defendant, who at that time was over the age of 21, agreed to a request by the then 14–year–old victim to take her with him to Florida. The victim crawled out of a window of her mother's home and entered defendant's car. While driving to Florida, defendant engaged in intercourse with her twice. The vehicle was ultimately stopped by police in Georgia, at which point defendant admitted to having a sexual relationship with the victim.

Defendant's contention that Supreme Court erroneously instructed the jury on the issue of geographical jurisdiction pursuant to CPL 20.40 is unpreserved because he failed to object to that charge (see People v. Hall, 294 A.D.2d 112, 112–113, 743 N.Y.S.2d 69 [1st Dept. 2002], lv denied 98 N.Y.2d 710, 749 N.Y.S.2d 8, 778 N.E.2d 559 [2002] ; see generally People v. Roulhac, 166 A.D.3d 1066, 1068, 86 N.Y.S.3d 336 [3d Dept. 2018], lv denied 32 N.Y.3d 1128, 93 N.Y.S.3d 266, 117 N.E.3d 825 [2018] ; People v. Hinds, 77 A.D.3d 429, 430–431, 908 N.Y.S.2d 397 [1st Dept. 2010], lv denied 15 N.Y.3d 953, 917 N.Y.S.2d 113, 942 N.E.2d 324 [2010] ). Defendant likewise failed to preserve his contention that the jury charge on geographical jurisdiction, together with the trial testimony, rendered the indictment duplicitous or otherwise created the possibility that defendant was convicted of an unindicted offense (see People v. Allen, 24 N.Y.3d 441, 449–450, 999 N.Y.S.2d 350, 24 N.E.3d 586 [2014] ; People v. Smith, 145 A.D.3d 1628, 1629, 44 N.Y.S.3d 658 [4th Dept. 2016], lv denied 31 N.Y.3d 1017, 78 N.Y.S.3d 287, 102 N.E.3d 1068 [2018] ).

We reject defendant's further contention that defense counsel was ineffective for failing to object to the jury charge regarding venue. Evidence presented at trial established that defendant met with the victim after she left her mother's Ontario County residence, thus establishing venue in Ontario County by virtue of an element of the offense occurring in that county (see CPL 20.40[1][a] ). Defendant's contention on appeal that the victim walked in a specific direction and crossed into a neighboring county before being met by defendant was unsupported at trial. Thus, any challenge to the jury charge would have had " ‘little or no chance of success’ " ( People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005] ). Defendant also contends that defense counsel was ineffective for failing to correct misstatements made by the prosecutor and the court during plea negotiations regarding the minimum sentence that he could receive after trial. That contention is based on matters outside the record on appeal and therefore must be raised in a proceeding pursuant to CPL article 440 (see People v. Surowka, 103 A.D.3d 985, 986–987, 962 N.Y.S.2d 377 [3d Dept. 2013] ; see also People v. Burgos, 130 A.D.3d 1493, 1494, 12 N.Y.S.3d 481 [4th Dept. 2015] ).

Defendant's challenge to the legal sufficiency of the evidence of abduction is unpreserved for our review because "his motion for a trial order of dismissal was not specifically directed at that alleged shortcoming in the evidence" ( People v. Lasher, 163 A.D.3d 1424, 1425, 76 N.Y.S.3d 868 [4th Dept. 2018], lv denied 32 N.Y.3d 1005, 86 N.Y.S.3d 763, 111 N.E.3d 1119 [2018] [internal quotation marks omitted] ). Viewing the evidence in light of the elements of the crime as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we conclude that the verdict is not against the weight of the evidence with respect to the elements of abduction and intent pursuant to Penal Law § 135.25(2)(a), and with respect to venue (see generally People v. Pritchard, 149 A.D.3d 1479, 1479, 52 N.Y.S.3d 595 [4th Dept. 2017] ).

The dissent disputes the weight of the evidence regarding the element of abduction, which as relevant here "means to restrain a person with intent to prevent his liberation by ... secreting or holding him in a place where he is not likely to be found" ( Penal Law § 135.00[2][a] ). Although the victim requested that defendant take her with him when he returned to Florida, one may "restrict a person's movements intentionally and unlawfully in such a manner as to interfere substantially with [her] liberty," i.e., "restrain" her, even with the "acquiescence of the victim, if [she] is a child less than sixteen years old" absent the acquiescence of the parent or guardian in the movement or confinement ( § 135.00[1][b] ). Here, defendant had requested and been denied permission by the victim's mother to date the victim, and the evidence at trial supported a finding that defendant lacked consent from her mother to take the victim when he returned to Florida. Further, after the victim's family discovered that she was missing from their home, both her mother and sister attempted to contact defendant. While driving with the victim to Florida, defendant told both the mother and sister that the victim was not with him and that he was already in Florida, neither of which was true and both of which hindered any attempt to locate the victim by those attempting to find her. Defendant thus secreted the victim by explicitly misrepresenting both of their whereabouts, denying that he had taken her with him, and keeping the victim where she was not likely to be found, i.e., in a moving vehicle driving across multiple state lines. Contrary to the dissent's suggestion, applying the definition of abduction to those facts does not render otherwise innocuous or innocent conduct criminal. Indeed, the definition of "restraint," an element of abduction, requires that the defendant act "with knowledge that the restriction is unlawful" ( § 135.00[1] ). The facts here—including that defendant had requested and been denied permission to date the victim, that defendant picked the victim up at night after she crawled from a window in her mother's home, that defendant misrepresented his and her location as they drove, and that he engaged in intercourse with the minor victim twice on the trip—each support a finding that defendant acted with knowledge that his conduct in driving her from her home was unlawful. Those facts distinguish this case from innocent, day-to-day activities that the dissent worries our decision here might criminalize. Simply put, the weight of the evidence supports a determination that defendant did not innocently acquiesce to the mere request of a 14–year–old acquaintance to drive her to Florida, but rather took advantage of a 14–year–old child's age and inexperience, by driving the victim across multiple state lines, away from her family, in order to engage in an unlawful sexual relationship with a child.

We agree with defendant, however, that the court erred in instructing the jury on the element of intent pursuant to Penal Law § 135.25 (2)(a), and we therefore reverse the judgment and grant a new trial. Section 135.25(2)(a) provides in relevant part that "[a] person is guilty of kidnapping in the first degree when he abducts another person and when ... [h]e restrains the person abducted for a period of more than twelve hours with intent to ... [i]nflict physical injury upon him or violate or abuse him sexually." On appeal, defendant specifically contends that the court erroneously instructed the jury regarding "intent to ... violate or abuse ... sexually" (id. ). We interpret the statute to mean that kidnapping in the first degree requires that a defendant both restrain a victim for more than 12 hours and possess, for more than 12 hours during the period of restraint, the intent to violate or abuse the victim sexually. Here, however, the court instructed the jury that "intent does not require advanced planning, nor is it necessary that the intent be in the person's mind for any particular period of time." After deliberations began, the jury returned multiple notes requesting further guidance on the relevant intent element. One note stated, "Please define intent, and if there is any time-frame given to defining intent." The court responded by rereading the above instruction. Viewing the charge as a whole and in light of the evidence produced at trial (see People v. Walker, 26 N.Y.3d 170, 174–175, 21 N.Y.S.3d 191, 42 N.E.3d 688 [2015] ), we conclude that the instruction was erroneous inasmuch as it permitted the jury to find that the element of intent pursuant to section 135.25(2)(a) had been established even if the jury did not find that the intent existed for more than 12 hours during a period of over 12 hours of restraint. Consequently, "the instruction did not adequately convey the meaning of intent to the jury and instead created a great likelihood of confusion such that the degree of precision required for a jury charge was not met" ( People v. Medina, 18 N.Y.3d 98, 104, 936 N.Y.S.2d 608, 960 N.E.2d 377 [2011] ). The error in the intent instruction is particularly significant because, "by their specific questions, the jurors indicated that they had focused upon the time defendant's criminal intent was formed" ( People v. Gaines, 74 N.Y.2d 358, 363, 547 N.Y.S.2d 620, 546 N.E.2d 913 [1989] ).

In light of the above conclusion, we need not address defendant's...