Opinion
No. 854 KA 22-00420
11-17-2023
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. BRIAN D. LAWRENCE, DEFENDANT-APPELLANT.
DAVID P. ELKOVITCH, AUBURN, FOR DEFENDANT-APPELLANT. BRITTANY GROME ANTONACCI, DISTRICT ATTORNEY, AUBURN (CHRISTOPHER T. VALDINA OF COUNSEL), FOR RESPONDENT.
DAVID P. ELKOVITCH, AUBURN, FOR DEFENDANT-APPELLANT.
BRITTANY GROME ANTONACCI, DISTRICT ATTORNEY, AUBURN (CHRISTOPHER T. VALDINA OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., BANNISTER, OGDEN, GREENWOOD, AND DELCONTE, JJ.
Appeal from a judgment of the Cayuga County Court (Mark H. Fandrich, A.J.), rendered December 21, 2021. The judgment convicted defendant, upon a jury verdict, of rape in the first degree and criminal trespass in the second degree.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, of rape in the first degree (Penal Law § 130.35 [1]) and criminal trespass in the second degree (§ 140.15 [1]). The charges arose from an incident during which defendant, who had previously been in a long-term relationship with the victim, allegedly entered the victim's apartment without permission, attempted to speak with her about emotional and family issues that he was experiencing, and then forcibly raped her after displaying anger when the victim rebuffed his attempts to speak with her. We affirm.
Defendant first contends that he was denied his constitutional right to present a complete defense because the prosecutor, through a discussion with defense counsel and County Court outside the presence of the jury, intimidated two defense witnesses into limiting their testimony by threatening criminal prosecution for, among other things, committing perjury. Defendant failed to preserve that contention for our review (see CPL 470.05 [2]; People v Hasan, 165 A.D.3d 1606, 1607 [4th Dept 2018], lv denied 32 N.Y.3d 1125 [2018]; People v Barry, 288 A.D.2d 1, 1 [1st Dept 2001], lv denied 97 N.Y.2d 701 [2002]; see generally People v Lane, 7 N.Y.3d 888, 889 [2006]; People v Allen, 88 N.Y.2d 831, 833 [1996]), and we decline to exercise our power to review it as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]; Hasan, 165 A.D.3d at 1607; Barry, 288 A.D.2d at 1).
Defendant next contends that the court denied him his constitutional right to present a complete defense and committed an evidentiary error by limiting the testimony of another defense witness about statements allegedly made by the victim. Defendant failed to preserve for our review that part of his contention asserting that he was denied the right to present a defense because he "did not raise th[at] constitutional claim[ ] in the trial court" (Lane, 7 N.Y.3d at 889; see People v Burton, 126 A.D.3d 1324, 1325 [4th Dept 2015], lv denied 25 N.Y.3d 1199 [2015]), and we decline to exercise our power to review that part of his contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]).
Contrary to the People's assertion, however, we conclude that defendant's arguments to the court were sufficient to preserve for our review that part of his contention asserting that the entire alleged statement of the victim was admissible to establish her motive to fabricate (see CPL 470.05 [2]; cf. People v Robinson [appeal No. 1], 267 A.D.2d 1031, 1031 [4th Dept 1999], lv denied 95 N.Y.2d 802 [2000]). Nonetheless, upon "rel[ying] on the record to discern the unarticulated predicate for the trial court's evidentiary ruling" (People v Nicholson, 26 N.Y.3d 813, 817 [2016]), we further conclude that the court did not abuse its discretion when it allowed defense counsel to elicit testimony from the defense witness that the victim had expressed a motive to fabricate the allegation of rape in this particular case, i.e., "to get [her] life back," but precluded defense counsel from eliciting testimony that would have required "inquiry into a speculative and remote matter" concerning a purported prior bad act of the victim (People v Jones, 184 A.D.3d 751, 753 [2d Dept 2020], lv denied 35 N.Y.3d 1113 [2020]; see People v Poole, 55 A.D.3d 1349, 1350 [4th Dept 2008], lv denied 11 N.Y.3d 929 [2009]; cf. People v Grant, 60 A.D.3d 865, 865 [2d Dept 2009]; People v McFarley, 31 A.D.3d 1166, 1167 [4th Dept 2006]). Even assuming, arguendo, that defendant preserved for our review his related contention that the precluded testimony was admissible as character evidence, we conclude that his contention lacks merit. "Character evidence is strictly limited to testimony concerning the [party's] reputation in the community..., and thus a character witness may not testify to specific acts in order to establish character" (People v Jimmeson, 101 A.D.3d 1678, 1679 [4th Dept 2012], lv denied 21 N.Y.3d 944 [2013] [internal quotation marks omitted]).
Defendant contends that the court committed reversible error in its Sandoval ruling by allowing the prosecutor to ask him on cross-examination whether he had a prior out-of-state conviction because, defendant asserts, the "adjudication withheld" disposition upon his plea of no contest to a robbery offense in Florida did not constitute a conviction as a matter of law and there was no documentation provided by the People that the adjudication was ever considered a conviction under Florida law. Initially, contrary to the People's assertion, defendant's contention is preserved for our review. Defendant "expressly [or impliedly] requested, without success on the ground now advanced on appeal, a ruling that the People not be permitted to cross-examine him regarding the [ostensible] prior conviction, and he 'is deemed to have thereby protested the court's ultimate disposition of the matter or failure to rule... accordingly sufficiently to raise a question of law with respect to such disposition or failure regardless of whether any actual protest thereto was registered'" (People v Fuller, 174 A.D.3d 1335, 1336 [4th Dept 2019], lv denied 34 N.Y.3d 951 [2019], quoting CPL 470.05 [2]; see People v Herman, 217 A.D.3d 1469, 1471 [4th Dept 2023], lv denied 40 N.Y.3d 997 [2023]; see generally People v Jackson, 29 N.Y.3d 18, 23-24 [2017]). Nonetheless, even assuming, arguendo, that the court erred in allowing the challenged question because "a plea nolo contendere with adjudication withheld in Florida... does not constitute a conviction under Florida law" (Matter of Farabell v Town of Macedon, 62 A.D.3d 1246, 1247 [4th Dept 2009]), we conclude that the error is harmless inasmuch as "the proof of guilt was overwhelming and there was no significant probability that the jury would have acquitted had the error not occurred" (People v Grant, 7 N.Y.3d 421, 424 [2006]; see People v Rivera, 132 A.D.2d 956, 957 [4th Dept 1987]; People v Grossman, 125 A.D.2d 985, 986 [4th Dept 1986], lv denied 69 N.Y.2d 881 [1987]).
Contrary to defendant's further contention, viewing the evidence in the light most favorable to the People (see People v Contes, 60 N.Y.2d 620, 621 [1983]), we conclude that the evidence is legally sufficient to support the conviction (see People v Carlson, 184 A.D.3d 1139, 1140 [4th Dept 2020], lv denied 35 N.Y.3d 1064 [2020]). Furthermore, viewing the evidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9 N.Y.3d 342, 349 [2007]), we reject defendant's contention that the verdict is against the weight of the evidence (see Carlson, 184 A.D.3d at 1141; see generally People v Bleakley, 69 N.Y.2d 490, 495 [1987]).
We also reject defendant's contention that the sentence is unduly harsh and severe. Finally, we have considered defendant's remaining contention and conclude that it does not warrant any relief.