People v. Wheeler
| Decision Date | 17 December 1975 |
| Citation | 50 A.D.2d 1089,377 N.Y.S.2d 329 |
| Parties | PEOPLE of the State of New York, Respondent, v. Thomas WHEELER, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Peter L. Yellin, Public Defender, Stephen G. Cheikes, Rochester, for appellant.
Jack B. Lazarus, Dist. Atty., Melvin Bressler, Rochester, for respondent.
Before MARSH, P.J., and SIMONS, MAHONEY, GOLDMAN and DEL VECCHIO, JJ.
Defendant, after a jury trial, was convicted of rape in the first degree (Penal Law § 130.35) and sentenced as a second felony offender to a term of imprisonment of five to ten years. In urging reversal, defendant asserts erroneous exclusion of proffered testimony concerning statements allegedly made by the complaining witness at the time period during which the alleged abuses of complainant by defendant occurred. In addition, defendant attacks the constitutionality of section 130.35(1) of the Penal Law, of which he now stands convicted, as well as the constitutionality of section 70.06 of the Penal Law under which he has been sentenced as a second felony offender.
Factually pertinent to this appeal, the principal witness against the defendant was the complainant victim, a girl 15 years of age at the time of the incident. She testified that she was introduced to the defendant by several of her friends on the evening of October 31, 1974 at the Town Park and that, after her friends had left, the defendant forcibly took her by her arm to his apartment which was within walking distance of the park. After locking the apartment door, she claims that the defendant removed her clothes, struck her with his first and pulled her into the bedroom where he forced her through fear to have intercourse. After the first act of intercourse, the defendant in response to a knock on the apartment door opened the door, with the complainant following him. Complainant recognized the three boys as those with whom she had been earlier in the evening and said that she attempted to attract their attention by jumping up and down behind the defendant and mouthing the word 'help', but to no avail. After the boys left, the defendant locked the door, took her back into the bedroom and again had intercourse with her on two more occasions, which she testified were without her consent and that she was 'scared' throughout the entire interlude. After the defendant fell asleep, complainant testified that she partially dressed herself with her outer garments and ran out of the apartment, leaving some of her clothing behind. On cross-examination complainant admitted that, at the time the three boys came to the apartment door, she told the boys to wait downstairs for her. In response to defense counsel's question as to whether at that time she did not say 'Don't tell Fritz' (complainant's boyfriend), she answered, 'No, I don't think so, no I didn't say that'.
Kurt Wagner, one of the boys who had come to the defendant's apartment door, testified that although he could not hear what complainant had said, her voice sounded 'nervous, maybe scared.' On cross-examination Wagner testified that after leaving defendant's apartment door the three boys waited downstairs for the complainant, but after ten minutes Wagner went home.
Testimony was also presented on behalf of the People's case as to the complainant arriving at a schoolmate's home at approximately 4:00 A.M. on the morning of November 1, 1974 in a distraught condition, wearing no socks or shoes, and relating that she had been raped. Deputy Sheriff McGee testified that he accompanied complainant and her father to defendant's apartment on the early morning of November 1, 1974, found the door ajar and the defendant sleeping in bed. After advising the defendant of his rights, the officer testified that the defendant denied any knowledge concerning various items of women's clothing which were found in defendant's apartment.
Deputy Emily Manzler, also sworn by the People, testified that in interviewing the complainant she seemed...
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