Opinion
2012-12-13
The PEOPLE of the State of New York, Respondent, v. Ygord BELIARD, Appellant.
Eugene P. Grimmick, Troy, for appellant. Richard J. McNally Jr., District Attorney, Troy (Gordon W. Eddy of counsel), for respondent.
Eugene P. Grimmick, Troy, for appellant. Richard J. McNally Jr., District Attorney, Troy (Gordon W. Eddy of counsel), for respondent.
BEFORE: PETERS, P.J., ROSE, SPAIN, McCARTHY and GARRY, JJ.
GARRY, J.
Appeal from a judgment of the County Court of Rensselaer County (McGrath, J.), rendered June 24, 2004, upon a verdict convicting defendant of the crimes of rape in the second degree, attempted sodomy in the second degree and endangering the welfare of a child.
In December 2002, a 14–year–old girl (hereinafter the victim) and a 12–year–old girl (hereinafter the younger victim) reported that two men had sexually assaulted them in an apartment in the City of Troy, Rensselaer County. Codefendant Edmond Joseph was indicted in March 2003 for offenses pertaining to the younger victim and, in the same indictment, was jointly charged with Steve Val for sexual offenses arising from a different incident. Defendant was later separately indicted for various crimes pertaining to the assault on the victim. The People thereafter successfully moved to sever the charges against Joseph pertaining to the younger victim from the March 2003 indictment and consolidate them with the indictment against defendant.
After conducting a Wade hearing, County Court ruled, among other things, that the victim's identification of defendant as her attacker in a photo array was admissible. Following a joint jury trial of defendant and Joseph, defendant was acquitted of all charges alleging use of forcible compulsion, and convicted of each of the charges arising from the victim's age—that is, one count each of rape in the second degree, attempted sodomy in the second degree and endangering the welfare of a child. County Court imposed an aggregate prison term of 3 2/3 to 11 years. Defendant appeals.
Initially, defendant argues that the charges against him were improperly consolidated with those against Joseph as they involved two different victims and thus did not constitute “the same criminal transaction” (CPL 200.40[1][c]; seeCPL 40.10[2]; 200.40[2] ). In this regard, the People contended that defendant and Joseph met the two victims on the street and lured them together to Joseph's apartment,where, in the same place and at the same time, defendant assaulted the victim while Joseph assaulted the younger victim. The accounts given by the victims of these events and the aftermath were largely identical. Even if defendant—whose trial counsel conceded that the charges were “technically joinable” while opposing consolidation on other grounds—had preserved this claim, we would have found that the alleged conduct of defendant and Joseph was “so closely related and connected in point of time and circumstance of commission as to constitute” the same criminal transaction for consolidation purposes (CPL 40.10[2]; see People v. Vogel, 216 A.D.2d 857, 857, 629 N.Y.S.2d 157 [1995],lv. denied86 N.Y.2d 804, 632 N.Y.S.2d 518, 656 N.E.2d 617 [1995];People v. Ramjit, 203 A.D.2d 488, 490, 612 N.Y.S.2d 600 [1994],lv. denied84 N.Y.2d 831, 617 N.Y.S.2d 151, 641 N.E.2d 172 [1994] ).
Defendant further claims that the consolidation violated his right to confront witnesses as enunciated in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 [2004] and Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 [1968] in that a redacted statement made by Joseph to police was admitted at the joint trial, where Joseph did not testify. This argument is unpreserved, as it was neither raised in opposition to the application to consolidate nor in objecting to the introduction of Joseph's statement ( see People v. Jenkins, 93 A.D.3d 861, 861, 940 N.Y.S.2d 874 [2012],lv. denied19 N.Y.3d 962, 950 N.Y.S.2d 114, 973 N.E.2d 212 [2012];People v. Serrano, 256 A.D.2d 175, 176, 684 N.Y.S.2d 1 [1998],lv. denied93 N.Y.2d 878, 689 N.Y.S.2d 440, 711 N.E.2d 654 [1999] ). In any event, no modification is warranted as there was no Crawford or Bruton violation; Joseph's statement named Val as the second man involved in the crimes, did not mention defendantand implicated him only when linked with other evidence at trial ( see People v. Pagan, 87 A.D.3d 1181, 1183–1185, 929 N.Y.S.2d 332 [2011],lv. denied18 N.Y.3d 885, 939 N.Y.S.2d 755, 963 N.E.2d 132 [2012];compare People v. Hardy, 4 N.Y.3d 192, 198–199, 791 N.Y.S.2d 513, 824 N.E.2d 953 [2005];People v. Pinto, 56 A.D.3d 956, 958, 868 N.Y.S.2d 338 [2008] ).
Next, we reject defendant's contention that County Court abused its discretion during the Wade hearing by preventing his counsel from inquiring into the victim's initial identification of Val as her attacker in a photo array that she viewed shortly after the attack. The victim later told police that she had been mistaken and identified defendant in a different photo array. “[T]he purpose of a Wade hearing is not to determine whether there are inconsistent identifications nor to obtain more fodder for cross-examination ... [but] to examine police procedures surrounding an out-of-court identification of the defendant for a taint of suggestiveness” ( Lynn v. Bliden, 443 F.3d 238, 249 [2d Cir.2006],cert. denied549 U.S. 1257, 127 S.Ct. 1383, 167 L.Ed.2d 168 [2007] [internal quotation marks omitted]; see People v. Chipp, 75 N.Y.2d 327, 335–336, 553 N.Y.S.2d 72, 552 N.E.2d 608 [1990],cert. denied498 U.S. 833, 111 S.Ct. 99, 112 L.Ed.2d 70 [1990] ). The first photo array did not include a picture of defendant and no claim was made that it was otherwise unduly suggestive; the mere fact that the victim viewed successive arrays did not taint the procedure in which she ultimately identified defendant ( compare People v. McKinley, 283 A.D.2d 777, 777–778, 724 N.Y.S.2d 376 [2001],lv. denied97 N.Y.2d 731, 740 N.Y.S.2d 704, 767 N.E.2d 161 [2002];People v. Lee, 207 A.D.2d 953, 953, 617 N.Y.S.2d 81 [1994],lv. denied 85 N.Y.2d 864, 624 N.Y.S.2d 383, 648 N.E.2d 803 [1995] ). Moreover, defense counsel was permitted to inquire into any interactions between police and the victim that might have influenced her determination that her first identification had been mistaken or her subsequent identification of defendant; in this regard, the investigator who conducted the identifications testified that no such suggestive interactions took place. Under these circumstances, the initial misidentification was of limited relevance, and the court did not abuse its “broad discretion” in limiting cross-examination on this issue ( People v. Roussopoulos, 261 A.D.2d 559, 559, 688 N.Y.S.2d 902 [1999],lv. denied93 N.Y.2d 978, 695 N.Y.S.2d 64, 716 N.E.2d 1109 [1999] ).
The victim was fully cross-examined at trial about the initial misidentification.
Defendant next contends that his convictions were contrary to the weight of the evidence. Where, as here, acquittals would not have been unreasonable, this Court “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]; accord People v. Shepherd, 83 A.D.3d 1298, 1298, 921 N.Y.S.2d 666 [2011],lv. denied17 N.Y.3d 809, 929 N.Y.S.2d 569, 953 N.E.2d 807 [2011] ). Although the verdict acquitting defendant of several charges suggests that the jury did not credit some of the victim's claims, it was entitled to “accept some of [her] testimony while rejecting other portions of it” ( People v. Wagner, 72 A.D.3d 1196, 1197, 899 N.Y.S.2d 392 [2010],lv. denied15 N.Y.3d 779, 907 N.Y.S.2d 468, 933 N.E.2d 1061 [2010];see People v. Kuykendall, 43 A.D.3d 493, 495, 840 N.Y.S.2d 472 [2007],lv. denied9 N.Y.3d 1007, 850 N.Y.S.2d 395, 880 N.E.2d 881 [2007] ). The jury evidently chose to credit the victim's account of defendant's sexual contact with her, which included the elements of the crimes of which he was ultimately convicted; further, her testimony was corroborated in part by the findings of a sexual assault nurse examiner who found, among other things, defendant's blood on the victim's pants and indicia that she had engaged in sexual intercourse. Deferring to the jury's credibility assessments, we find no reason to disturb the convictions ( see People v. Simonetta, 94 A.D.3d 1242, 1244, 942 N.Y.S.2d 270 [2012],lv. denied19 N.Y.3d 1029, 953 N.Y.S.2d 562, 978 N.E.2d 114 [2012];People v. Beauharnois, 64 A.D.3d 996, 998–999, 882 N.Y.S.2d 589 [2009],lv. denied13 N.Y.3d 834, 890 N.Y.S.2d 450, 918 N.E.2d 965 [2009];People v. Bush, 14 A.D.3d 804, 804–805, 788 N.Y.S.2d 258 [2005],lv. denied4 N.Y.3d 852, 797 N.Y.S.2d 426, 830 N.E.2d 325 [2005] ).
County Court did not err in directing defendant's sentences for the rape and attempted sodomy convictions to run consecutively, as the elements of these crimes “are distinct and require separate, discrete acts” ( People v. MacGilfrey, 288 A.D.2d 554, 557, 733 N.Y.S.2d 254 [2001],lv. denied97 N.Y.2d 757, 742 N.Y.S.2d 617, 769 N.E.2d 363 [2002];accord People v. Lussier, 298 A.D.2d 763, 765, 749 N.Y.S.2d 323 [2002],lv. denied99 N.Y.2d 630, 760 N.Y.S.2d 111, 790 N.E.2d 285 [2003] ). Despite defendant's lack of prior criminal history, we find no abuse of discretion or extraordinary circumstances in the court's imposition of the maximum permissible sentences in view of the exploitative nature of his crimes and their impact on his young victim ( see People v. Lanfair, 18 A.D.3d 1032, 1034, 795 N.Y.S.2d 390 [2005],lv. denied 5 N.Y.3d 790, 801 N.Y.S.2d 811, 835 N.E.2d 671 [2005];People v. MacGilfrey, 288 A.D.2d at 556–557, 733 N.Y.S.2d 254). Defendant's remaining contention has been examined and found to be without merit.
ORDERED that the judgment is affirmed.
PETERS, P.J., ROSE, SPAIN and McCARTHY, JJ., concur.