Opinion
2021-06270
11-12-2021
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. MICHAEL CARUTHERS, DEFENDANT-APPELLANT.
MARK D. FUNK, CONFLICT DEFENDER, ROCHESTER (CAROLYN WALTHER OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL), FOR RESPONDENT.
MARK D. FUNK, CONFLICT DEFENDER, ROCHESTER (CAROLYN WALTHER OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., PERADOTTO, NEMOYER, BANNISTER, AND DEJOSEPH, JJ.
Appeal from a judgment of the Monroe County Court (James J. Piampiano, J.), rendered September 16, 2015. The judgment convicted defendant upon a jury verdict of rape in the first degree (two counts), rape in the second degree (two counts), criminal sexual act in the first degree, criminal sexual act in the second degree and criminal obstruction of breathing or blood circulation.
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, inter alia, two counts of rape in the first degree (Penal Law § 130.35 [1]) and one count of criminal obstruction of breathing or blood circulation (§ 121.11 [a]). Contrary to defendant's contention, the criminal obstruction of breathing or blood circulation conviction is supported by legally sufficient evidence (see generally People v Bleakley, 69 N.Y.2d 490, 495 [1987]) and, 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 conclude that the verdict is not against the weight of the evidence (see generally Bleakley, 69 N.Y.2d at 495). Contrary to defendant's contention, County Court properly refused to suppress the victim's identification testimony (see People v Owens, 161 A.D.3d 1567, 1568 [4th Dept 2018], lv denied 34 N.Y.3d 1161 [2020]; People v Bolden, 109 A.D.3d 1170, 1172 [4th Dept 2013], lv denied 22 N.Y.3d 1039 [2013]). Contrary to defendant's further contention, the video evidence was adequately authenticated (see People v Oquendo, 152 A.D.3d 1220, 1220-1221 [4th Dept 2017], lv denied 30 N.Y.3d 982 [2017]). Moreover, any error in the admission of the statements made by the victim immediately after the crime is harmless (see People v Ridgeway, 295 A.D.2d 879, 880 [4th Dept 2002], lv denied 98 N.Y.2d 713 [2002]). We reject defendant's contention that defense counsel was ineffective in connection with plea bargaining inasmuch as "the People refused to extend any offers due to defendant's criminal history" (People v Spencer, 183 A.D.3d 1258, 1259 [4th Dept 2020], lv denied 35 N.Y.3d 1070 [2020]). Contrary to defendant's further contention, counts three and four of the indictment were not rendered duplicitous by the victim's trial testimony (see People v McFadden, 148 A.D.3d 1769, 1772 [4th Dept 2017], lv denied 29 N.Y.3d 1093 [2017]). Defendant's specific sentencing arguments are without merit. Defendant's remaining contentions do not warrant reversal or modification of the judgment.