People v. Valdivia
| Decision Date | 19 February 1985 |
| Citation | 108 A.D.2d 885,485 N.Y.S.2d 580 |
| Parties | The PEOPLE, etc., Respondent, v. Pablo Quinones VALDIVIA, Appellant. |
| Court | New York Supreme Court — Appellate Division |
William E. Hellerstein, New York City (Mark J. Clark, New York City, of counsel), for appellant.
John J. Santucci, Dist. Atty., Kew Gardens (Gary S. Fidel, Kew Gardens, of counsel), for respondent.
Before GIBBONS, J.P., and THOMPSON, WEINSTEIN and BROWN, JJ.
MEMORANDUM BY THE COURT.
Appeal by defendant from a judgment of the Supreme Court, Queens County, rendered March 11, 1982, convicting him of rape in the first degree, sodomy in the first degree, sexual abuse in the first degree, and unlawful imprisonment in the first degree, upon a jury verdict, and sentencing him to two consecutive terms of imprisonment of eight and one-third to 25 years to run concurrent to two concurrent terms of imprisonment of two and one-third to seven years and four years, respectively.
Judgment modified, on the law and as a matter of discretion in the interest of justice, by reversing the conviction of unlawful imprisonment in the first degree, vacating the sentence imposed thereon and dismissing that count, and by providing that the sentences for rape in the first degree and sodomy in the first degree are to run concurrent with each other. As so modified, judgment affirmed.
While riding an elevator to her sixth-floor apartment at approximately 3:00 A.M. on April 12, 1981, the complainant was confronted by an assailant brandishing a knife. The assailant pressed the buttons to all the floors up to the sixth floor, and, at each floor, looked up and down the hallway. The elevator was lit, and the complainant was able to look at her assailant's face. The assailant spoke English with a very heavy accent. Eventually the elevator returned to the first floor and the assailant motioned the complainant to an elevator bank on the other side of the building. The complainant and the assailant entered another elevator, where the assailant sexually abused and sodomized the complainant. The assailant motioned the complainant out of the elevator and into apartment 1-J, where he raped and sodomized her. The assailant then permitted the complainant to leave the apartment.
The complainant brought the police to 1-J within one hour of the commission of the crimes. The police took down the door to the apartment, but found no one inside.
The complainant described her assailant to the police as being either a male Hispanic or foreigner, between 46 and 50 years of age, five feet, 10 inches tall, with dark brown hair, and light acne or pockmarks. In a subsequent conversation with the police prior to the arrest of defendant, the complainant stated that the assailant had an indentation on the left side of his nose.
Defendant, the lessee and sole resident of apartment 1-J, was a Hispanic male, age 40, five feet eight inches tall, with many scars and lines on his face, and an indentation on the left side of his nose. Furthermore, defendant displayed great difficulty in speaking English at the trial, during which the complainant made a positive identification. Defendant did not assert that anyone other than the...
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...considered it error, but have employed harmless error analysis in determining whether reversal is required (e.g., People v. Valdivia, 108 A.D.2d 885, 886, 485 N.Y.S.2d 580; People v. Connette, 101 A.D.2d 699, 700, 475 N.Y.S.2d 682 [dictum]; cf. People v. Thomas, 91 A.D.2d 857, 858, 458 N.Y.......
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