People v. Van Nostrand

• Decision Date: 20 July 1995
• Citation: 217 A.D.2d 800,630 N.Y.S.2d 101
• Parties: The PEOPLE of the State of New York, Respondent, v. Ira Joe VAN NOSTRAND, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 101

630 N.Y.S.2d 101

217 A.D.2d 800

The PEOPLE of the State of New York, Respondent, v. Ira Joe VAN NOSTRAND, Appellant.

Supreme Court, Appellate Division,

Third Department.

July 20, 1995.

Bruce R. Bryan, Syracuse, for appellant.

James W. Cooper, Special Dist. Atty., Warrensburg, for respondent.

Before CARDONA, P.J., and MERCURE, WHITE, PETERS and SPAIN, JJ.

WHITE, Justice.

Appeal from a judgment of the County Court of Hamilton County (Feldstein, J.), rendered October 22, 1993, upon a verdict convicting defendant of the crimes of rape in the first degree, rape in the third degree (12 counts), criminal possession of a weapon in the third degree and coercion in the first degree.

On August 5, 1992, a felony complaint and misdemeanor information were filed in Justice Court in the Town of Wells, Hamilton County, charging defendant with the crimes of rape in the first degree and endangering the welfare of a child. Thereafter, defendant waived indictment and consented to be prosecuted by a superior court information charging him with the crime of rape in the third degree. Although the transcript of the proceeding is not part of the record, it is undisputed that defendant pleaded guilty to the rape charge on September 16, 1992. After a new District Attorney assumed office, this matter was presented to a Grand Jury which returned a 52-count indictment charging defendant, inter alia, with having committed a series of rapes between July 11, 1991 and September 25, 1991. Following trial, defendant was convicted of one count of rape in the first degree, one count of coercion in the first degree, one count of criminal possession of a weapon in the third degree and 12 counts of rape in the third degree; defendant was sentenced to terms of imprisonment totaling 23 to 69 years. Defendant appeals.

Initially, defendant argues that his conviction should be reversed on double jeopardy grounds pursuant to CPL 40.40(1) and (2). Whether this statute is applicable depends upon whether the offense charged in the superior court information and the offenses charged in the indictment are based upon the same criminal transaction which is defined as "conduct * * * so closely related and connected in point of time and circumstance of commission as to constitute a single criminal incident" (CPL 40.10[2].

The record shows that while the rapes were perpetrated against the same victim, the rape charge in the superior court information arose out of an incident that occurred on July 5, 1991 in the Town of Wells, whereas the rape charges in the indictment are based on incidents that took place in the Town of Lake Pleasant, Hamilton County, between July 11, 1991 and September 25, 1991. Given the temporal and spatial differences between the acts of rape alleged in the two accusatory instruments the prosecution of the indictment is not barred by double jeopardy since each rape was a separate and distinct crime rather than a product of a single criminal incident (see, People v. Moore, 170 A.D.2d 847, 849, 566 N.Y.S.2d 674, lv. denied 77 N.Y.2d 998, 571 N.Y.S.2d 924, 575 N.E.2d 410; People v. Brown, 66 A.D.2d 223, 226, 413 N.Y.S.2d 482).

Alternatively, defendant contends he should not have been tried on the indictment because, when he pleaded guilty to the rape charge contained in the superior court information, he believed that such plea resolved all matters claimed by the victim against him. We reject this argument because there is nothing in the record indicating that the plea was accepted in full satisfaction of all possible charges (see, People v. Davis, 187 A.D.2d 750, 590 N.Y.S.2d 761). In fact, at sentencing County Court, which had accepted the plea, remarked that it was not in full satisfaction of all charges. Also, defendant's belief that the plea covered other uncharged crimes is irrelevant because New York does not recognize a subjective double jeopardy rule (see, People v. Latham, 83 N.Y.2d 233, 239, 609 N.Y.S.2d 141, 631 N.E.2d 83).

In a Sandoval hearing, County Court precluded the People from using defendant's rape conviction to impeach his testimony and from questioning him about the underlying circumstances of the conviction. However, it did permit the victim to testify about the underlying circumstances to the extent that defendant pointed a gun at her and told her that she would have to allow him to have sexual intercourse with her or he would kill everyone. Defendant contends that it was error to admit this testimony.

Generally, evidence of prior crimes committed by an accused may not be admitted unless it helps establish some element of the crimes under consideration or is relevant because of some recognized exception to the general rule (see, People v. Lewis, 69 N.Y.2d 321, 325, 514 N.Y.S.2d 205, 506 N.E.2d 915). In this instance, the evidence was relevant on the issue of the victim's state of mind and to prove that defendant used "forcible compulsion", a necessary element of the crime of rape in the first degree (see, People v. George, 197 A.D.2d 588, 589, 602 N.Y.S.2d 643, lvs. denied 82 N.Y.2d 925, 610 N.Y.S.2d 177, 632 N.E.2d 487, 83 N.Y.2d 852, 612 N.Y.S.2d 384, 634 N.E.2d 985). Therefore, since the probative value of the victim's testimony outweighed the dangers of prejudice to defendant, it was properly admitted into evidence even though it may have revealed that defendant committed another crime (see, People v. Gutkaiss, 206 A.D.2d 584, 614 N.Y.S.2d 462, lvs. denied, 84 N.Y.2d 936, 621 N.Y.S.2d 533, 645 N.E.2d 1233, 84 N.Y.2d 1032, 623 N.Y.S.2d 188, 647 N.E.2d 460; People v. Thompson, 158 A.D.2d 563, 551 N.Y.S.2d 332, lv. denied 76 N.Y.2d 797, 559 N.Y.S.2d 1002, 559 N.E.2d 696).

We have examined defendant's other challenges to County Court's rulings and find that they lack substance. County Court's admonishment to defendant not to consult with his attorney during a recess in his testimony did not infringe upon his constitutional right to counsel (see, People v. Branch, 83 N.Y.2d 663, 666, 612 N.Y.S.2d 365, 634 N.E.2d 966). The victim's testimony explaining her delay in reporting the rapes was properly admitted as it was relevant to dispel the doubt some jurors may have had regarding her veracity because of her failure to promptly report them (see, People v. McDaniel, 81 N.Y.2d 10, 16, 595 N.Y.S.2d 364, 611 N.E.2d 265; People v. Naylor, 196 A.D.2d 320, 323, 609 N.Y.S.2d 954, lv. denied 84 N.Y.2d 870, 618 N.Y.S.2d 16, 642 N.E.2d 335). ¹

Lastly, County Court properly exercised its discretion in prohibiting defense counsel from cross-examining the victim and her mother about whether the victim regularly consumed alcohol and used drugs in her mother's presence and whether the victim had on one occasion pulled down her pants and showed the "moon" since these generalized acts were not relevant to the central issues in this case (see, People v. Domanico, 203 A.D.2d 378, 379, 612 N.Y.S.2d 914; People v....