Opinion
07-21-2016
The PEOPLE of the State of New York, Respondent, v. Wan Tu ACKERMAN, Appellant.
Matthew C. Hug, Albany, for appellant. P. David Soares, District Attorney, Albany (Brittany L. Grome of counsel), for respondent.
Matthew C. Hug, Albany, for appellant.
P. David Soares, District Attorney, Albany (Brittany L. Grome of counsel), for respondent.
Before: McCARTHY, J.P., ROSE, DEVINE, CLARK and AARONS, JJ.
Opinion
AARONS, J. Appeal from a judgment of the County Court of Albany County (Lynch, J.), rendered May 1, 2014, upon a verdict convicting defendant of the crime of attempted rape in the first degree.
In a single-count indictment, defendant was charged with attempted rape in the first degree. While defendant's first trial resulted in a mistrial, he was subsequently convicted after a second trial. County Court thereafter sentenced defendant, as a second felony offender, to a prison term of seven years followed by 15 years of postrelease supervision. Defendant appeals. We affirm.
Defendant initially contends that the evidence was legally insufficient to support the conviction because the People failed to prove the element of forcible compulsion. As defendant's motion to dismiss made at the close of the People's proof did not rely on this specific ground in seeking dismissal, this contention is unpreserved for review (see People v. Newkirk, 75 A.D.3d 853, 855, 906 N.Y.S.2d 133 [2010], lv. denied 16 N.Y.3d 834, 921 N.Y.S.2d 198, 946 N.E.2d 186 [2011] ). In light of defendant's further contention that the verdict was against the weight of the evidence, which is not subject to preservation requirements (see People v. Tompkins, 107 A.D.3d 1037, 1038, 966 N.Y.S.2d 605 [2013], lv. denied 22 N.Y.3d 1044, 981 N.Y.S.2d 377, 4 N.E.3d 389 [2013] ), we review the evidence adduced as to each element of the crime for which defendant was convicted (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). Inasmuch as a contrary verdict would not have been unreasonable, we “must, like the trier of fact below, weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony” (People v. Romero, 7 N.Y.3d 633, 643, 826 N.Y.S.2d 163, 859 N.E.2d 902 [2006] [internal quotation marks and citations omitted]; see People v. Hoppe, 96 A.D.3d 1157, 1158, 946 N.Y.S.2d 671 [2012], lv. denied 19 N.Y.3d 1026, 953 N.Y.S.2d 559, 978 N.E.2d 111 [2012] ; People v. Plaisted, 2 A.D.3d 906, 907–908, 767 N.Y.S.2d 518 [2003], lv. denied 2 N.Y.3d 744, 778 N.Y.S.2d 470, 810 N.E.2d 923 [2004] ).
The evidence at trial reveals that after a night of socializing, the victim invited a friend and defendant, with whom she had a prior casual sexual relationship, to her apartment where they had more alcoholic drinks and played cards. In the early morning, defendant eventually fell asleep on a couch in the living room. The victim changed into her pajamas and went to sleep in her bedroom. She then woke up naked with defendant lying on top of her. The victim testified that she was lying face down on her stomach but felt pressure on the back of her neck and legs. She also felt that her legs were being pried apart and that defendant tried to engage in sexual intercourse. The victim testified that she could not get up because defendant was still on top of her and holding the back of her neck. In response to the victim's resistence and escalating protestations, defendant told her to “stop[,] ... there [are] kids here.” According to the victim, these words made her feel “afraid” and “scared” and she did not want to alarm the children in the apartment. Defendant was ultimately unsuccessful in penetrating the victim's vagina.
The victim lived in her apartment with her cousin and her cousin's children.
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Upon our independent review of the evidence, including the presence of semen on the victim's bed sheet and pajamas, which was linked to defendant through DNA testing, we find that the verdict was supported by the weight of the evidence (see People v. Nehma, 101 A.D.3d 1170, 1170–1171, 954 N.Y.S.2d 706 [2012] ; People v. Texidor, 71 A.D.3d 1190, 1192–1193, 896 N.Y.S.2d 234 [2010], lv. denied 14 N.Y.3d 893, 903 N.Y.S.2d 781, 929 N.E.2d 1016 [2010] ; People v. Jackson, 290 A.D.2d 644, 646, 736 N.Y.S.2d 715 [2002], lv. denied 98 N.Y.2d 711, 749 N.Y.S.2d 8, 778 N.E.2d 559 [2002] ). We disagree with defendant that the victim's testimony about the incident in the instant trial materially differed from her testimony given at the first trial, and, to the extent that any inconsistencies existed, they presented a credibility issue for the jury's assessment (see People v. Brabham, 126 A.D.3d 1040, 1043, 4 N.Y.S.3d 386 [2015], lvs. denied 25 N.Y.3d 1160, 1171, 15 N.Y.S.3d 292, 36 N.E.3d 95 [2015] ; People v. Izzo, 104 A.D.3d 964, 966–967, 961 N.Y.S.2d 333 [2013], lv. denied 21 N.Y.3d 1005, 971 N.Y.S.2d 256, 993 N.E.2d 1279 [2013] ). Defendant's argument that the victim was unworthy of belief due to her history of lying and a prior criminal conviction likewise pertains to her credibility for the jury to resolve (see People v. Blackman, 90 A.D.3d 1304, 1308, 935 N.Y.S.2d 181 [2011], lv. denied 19 N.Y.3d 971, 950 N.Y.S.2d 353, 973 N.E.2d 763 [2012] ). According deference to the jury's credibility determinations, we cannot conclude that the verdict was contrary to the weight the evidence (see People v. Hoppe, 96 A.D.3d at 1160, 946 N.Y.S.2d 671 ; People v. Newkirk, 75 A.D.3d at 855–856, 906 N.Y.S.2d 133 ).
We also reject defendant's claim that he received the ineffective assistance of counsel. Defendant's complaints that his counsel failed to object to the admissibility of the DNA evidence or to request attempted rape in the third degree as a lesser included charge concern trial strategies which, on this record, do not rise to the level of ineffective assistance of counsel (see People v. Briskin, 125 A.D.3d 1113, 1122, 3 N.Y.S.3d 200 [2015], lv. denied 25 N.Y.3d 1069, 12 N.Y.S.3d 621, 34 N.E.3d 372 [2015] ). Similarly, the failure of defense counsel to request an intoxication charge does not amount to ineffective assistance inasmuch as this charge would have been inconsistent with the defense theory that there was no sexual contact with the victim (see People v. Van Ness, 43 A.D.3d 553, 555, 840 N.Y.S.2d 250 [2007], lv. denied 9 N.Y.3d 965, 848 N.Y.S.2d 34, 878 N.E.2d 618 [2007] ). Defendant's remaining arguments on this issue are either belied by the record or without merit. Where, as here, defense counsel vigorously cross-examined the People's forensic expert, as well as other witnesses, and called a witness on defendant's behalf, we conclude that defendant received meaningful representation (see People v. McCloud, 121 A.D.3d 1286, 1291, 995 N.Y.S.2d 269 [2014], lv. denied 25 N.Y.3d 1167, 15 N.Y.S.3d 299, 36 N.E.3d 102 [2015] ; People v. Jones, 101 A.D.3d 1241, 1243, 955 N.Y.S.2d 694 [2012], lv. denied 21 N.Y.3d 944, 968 N.Y.S.2d 6, 990 N.E.2d 140 [2013] ; People v. Fuller, 50 A.D.3d 1171, 1176–1177, 854 N.Y.S.2d 594 [2008], lv. denied 11 N.Y.3d 788, 866 N.Y.S.2d 614, 896 N.E.2d 100 [2008] ).
Finally, we disagree with defendant's assertion that the sentence was harsh and excessive. County Court did not impose the maximum permissible sentence (see Penal Law § 70.06[6][b] ), and, considering defendant's prior criminal history, we see no abuse of discretion or the existence of extraordinary circumstances warranting a reduction of defendant's sentence in the interest of justice (see People v. Dean, 122 A.D.3d 1004, 1005, 995 N.Y.S.2d 839 [2014] ; People v. Masters, 36 A.D.3d 959, 960–961, 826 N.Y.S.2d 835 [2007], lv. denied, 8 N.Y.3d 925, 834 N.Y.S.2d 515, 866 N.E.2d 461 [2007] ).
ORDERED that the judgment is affirmed.
McCARTHY, J.P., ROSE, DEVINE and CLARK, JJ., concur.