Opinion
902 KA 15-01935
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.
MEMORANDUM AND ORDER
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, 515 N.Y.S.2d 761, 508 N.E.2d 672 [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, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we conclude that the verdict is not against the weight of the evidence (see generally Bleakley , 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). 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, 77 N.Y.S.3d 257 [4th Dept. 2018], lv denied 34 N.Y.3d 1161, 120 N.Y.S.3d 269, 142 N.E.3d 1171 [2020] ; People v. Bolden , 109 A.D.3d 1170, 1172, 973 N.Y.S.2d 500 [4th Dept. 2013], lv denied 22 N.Y.3d 1039, 981 N.Y.S.2d 372, 4 N.E.3d 384 [2013] ). Contrary to defendant's further contention, the video evidence was adequately authenticated (see People v. Oquendo , 152 A.D.3d 1220, 1220-1221, 57 N.Y.S.3d 872 [4th Dept. 2017], lv denied 30 N.Y.3d 982, 67 N.Y.S.3d 584, 89 N.E.3d 1264 [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, 743 N.Y.S.2d 751 [4th Dept. 2002], lv denied 98 N.Y.2d 713, 749 N.Y.S.2d 10, 778 N.E.2d 561 [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, 123 N.Y.S.3d 369 [4th Dept. 2020], lv denied 35 N.Y.3d 1070, 129 N.Y.S.3d 380, 152 N.E.3d 1181 [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, 50 N.Y.S.3d 762 [4th Dept. 2017], lv denied 29 N.Y.3d 1093, 63 N.Y.S.3d 9, 85 N.E.3d 104 [2017] ). Defendant's specific sentencing arguments are without merit. Defendant's remaining contentions do not warrant reversal or modification of the judgment.