People v. Welch

• Citation: 897 N.Y.S.2d 546,71 A.D.3d 1329
• Parties: The PEOPLE of the State of New York, Respondent, v. Draper WELCH, Appellant.
• Decision Date: 25 March 2010
• Court: New York Supreme Court — Appellate Division

897 N.Y.S.2d 546
71 A.D.3d 1329

The PEOPLE of the State of New York, Respondent,
v.
Draper WELCH, Appellant.

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

March 25, 2010.

897 N.Y.S.2d 547

Thomas H. Kheel, Ithaca, for appellant, and appellant pro se.

Gwen Wilkinson, District Attorney, Ithaca (Linda Gafford of counsel), for respondent.

Before: MERCURE, J.P., SPAIN, ROSE, LAHTINEN and McCARTHY, JJ.

ROSE, J.

71 A.D.3d 1330

Appeal from a judgment of the County Court of Tompkins County (Rowley, J.), entered February 6, 2007, upon a verdict convicting defendant of the crimes of rape in the first degree, criminal sexual act in the first degree, burglary in the first degree, attempted rape in the first degree, assault in the second degree, robbery in the third degree and criminal possession of a weapon in the third degree.

The victim, who had fallen asleep because she felt ill, awoke to find a man whom she had never seen before in her apartment. After she repeatedly asked him to leave, the man grabbed her, covered her mouth and threatened to shoot her. He removed her pants and underpants, attempted sexual intercourse, struck her twice in the head and warned her to cooperate. He then sexually abused and raped her. Before the man left, he also demanded money and took over $600 and some DVDs. After he left, the victim found a black pistol on the floor of her apartment and called 911. Based on her description of the man, the police were able to identify and arrest defendant. At trial, defendant disputed the victim's claim that she had never seen him before, and he admitted having sexual relations with her,

897 N.Y.S.2d 548

but asserted that they were consensual. He also testified that the victim loaned him the DVDs and gave him the money to purchase illegal drugs for her. The jury, by its verdict, rejected defendant's claims and convicted him of rape in the first degree, criminal sexual act in the first degree, burglary in the first degree, attempted rape in the first degree, assault in the second degree, robbery in the third degree and criminal possession of a weapon in the third degree. County Court sentenced defendant, as a second felony offender, to an aggregate term of 25 years in prison.

Of the issues preserved for our review, we initially address defendant's contention that County Court erred in allowing a sexual assault nurse examiner called by the People to testify regarding the question of whether the sexual contact here was

71 A.D.3d 1331

consensual. The nurse opined that she had never found injuries similar to those of the victim (four lacerations of up to three quarters of an inch long on the posterior fourchette) in cases of consensual intercourse that she had examined, and her review of the research literature indicated that physical injuries occurred in only 10% of consensual cases. Inasmuch as the witness was qualified to render such an opinion based upon her professional training and experience, and the issue of how likely it is that consensual intercourse causes injuries such as these is beyond the ken of the typical juror, County Court did not abuse its discretion in permitting this testimony ( see People v. Cronin, 60 N.Y.2d 430, 432-433, 470 N.Y.S.2d 110, 458 N.E.2d 351 [1983]; People v. Rogers, 8 A.D.3d 888, 892, 780 N.Y.S.2d 393 [2004]; People v. Morehouse, 5 A.D.3d 925, 928-929, 774...