Summary
In People v. Santiago (946 N.Y.S.2d 383, 2012 N.Y.App. Div. LEXIS 4498, 2012 WL 2054803 [4th Dep't 2012]), the People conceded that the fourth count of the indictment, charging sexual abuse in the first degree, must be dismissed because the evidence showed a single, uninterrupted attack in which the attacker groped several parts of a victim's body.
Summary of this case from People v. HernandezOpinion
2012-06-8
The PEOPLE of the State of New York, Respondent, v. Carlos SANTIAGO, Jr., Defendant–Appellant.
Timothy P. Donaher, Public Defender, Rochester (Drew R. Dubrin of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Nicole M. Fantigrossi of Counsel), for Respondent.
Timothy P. Donaher, Public Defender, Rochester (Drew R. Dubrin of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Nicole M. Fantigrossi of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., SMITH, FAHEY, LINDLEY, AND MARTOCHE, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, two counts of sexual abuse in the first degree (Penal Law § 130.65[1] ). 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), we reject defendant's contention that the verdict is against the weight of the evidence ( see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Although “an acquittal would not have been unreasonable” ( Danielson, 9 N.Y.3d at 348, 849 N.Y.S.2d 480, 880 N.E.2d 1), “[w]here, as here, witness credibility is of paramount importance to the determination of guilt or innocence, [we] must give ‘[g]reat deference ... [to the jury's] opportunity to view the witnesses, hear the testimony and observe demeanor’ ” ( People v. Harris, 15 A.D.3d 966, 967, 788 N.Y.S.2d 745,lv. denied4 N.Y.3d 831, 796 N.Y.S.2d 586, 829 N.E.2d 679, quoting Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Contrary to defendant's further contention, the testimony of the prosecution witnesses was not incredible as a matter of law, that is, it was not “ ‘impossible of belief because it [was] manifestly untrue, physically impossible, contrary to experience, or self-contradictory’ ” ( People v. Garafolo, 44 A.D.2d 86, 88, 353 N.Y.S.2d 500;see People v. Rumph, 93 A.D.3d 1346, 1347, 940 N.Y.S.2d 769;People v. Wallace, 306 A.D.2d 802, 802–803, 760 N.Y.S.2d 702).
We reject defendant's contention that County Court erred in refusing to suppress the in-court identification by the victim on the ground that it was based on an unduly suggestive photo array identification procedure. Contrary to the People's contention, defendant preserved that contention for our review inasmuch as the suppression court “specifically confronted and resolved [the] issue” ( People v. Feingold, 7 N.Y.3d 288, 290, 819 N.Y.S.2d 691, 852 N.E.2d 1163). We conclude, however, that the People met their initial burden of establishing the reasonableness of the police conduct with respect to the photo array, and defendant failed to meet his ultimate burden of proving that the identification procedure was unduly suggestive ( see generally People v. Chipp, 75 N.Y.2d 327, 335, 553 N.Y.S.2d 72, 552 N.E.2d 608,cert. denied498 U.S. 833, 111 S.Ct. 99, 112 L.Ed.2d 70).
Defendant failed to preserve for our review his further contention that the indictment is multiplicitous ( seeCPL 470.05[2] ). We nevertheless exercise our power to review that contention as a matter of discretion in the interest of justice ( seeCPL 470.15[6][a] ). As the People correctly concede, the fourth count of the indictment, charging sexual abuse in the first degree, must be dismissed because where, as here, “the evidence ... shows a single, uninterrupted attack in which the attacker gropes several parts of a victim's body, the attacker may be charged with only one count of sexual abuse” ( People v. Alonzo, 16 N.Y.3d 267, 268, 920 N.Y.S.2d 302, 945 N.E.2d 495). We therefore modify the judgment accordingly.
Defendant contends that the court erred in sentencing him as a second felony offender. At sentencing, defendant challenged the prior conviction from Pennsylvania solely upon the ground that he would have been eligible to be adjudicated a youthful offender upon the conviction if it had occurred in New York but that such relief was not available in Pennsylvania. On appeal, however, he contends that the Pennsylvania conviction would not constitute a conviction in New York because he was 15 years old at the time of conviction, and a 15–year–old could not be convicted in New York of manslaughter in the second degree, one of the offenses encompassed by the Pennsylvania conviction of murder in the third degree ( see18 Pa Cons Stat Ann § 2502[c] ).
The Court of Appeals has stated that, in order “[t]o determine whether a foreign crime is equivalent to a New York felony[,] the court must examine the elements of the foreign statute and compare them to an analogous Penal Law felony, for ‘[i]t is the statute upon which the indictment was drawn that necessarily defines and measures the crime’ ” ( People v. Gonzalez, 61 N.Y.2d 586, 589, 475 N.Y.S.2d 358, 463 N.E.2d 1210, quoting People v. Olah, 300 N.Y. 96, 98, 89 N.E.2d 329). The Court added, however, that, “[a]s an exception to the ... rule [set forth in People v. Olah, it has] permitted a sentencing court to go beyond the statute and scrutinize the accusatory instrument in the foreign jurisdiction where the statute renders criminal not one act but several acts which, if committed in New York, would in some cases be felonies” and in others would not constitute felonies (id. at 590, 475 N.Y.S.2d 358, 463 N.E.2d 1210). Preservation is required when the defendant's contention requires that the sentencing court determine “whether a particular out-of-State conviction is the equivalent of a New York felony[, which] may involve production and examination of foreign accusatory instruments and, conceivably, the resolution of evidentiary disputes, all in the context of comparisons with the law of other jurisdictions” ( People v. Samms, 95 N.Y.2d 52, 57, 710 N.Y.S.2d 310, 731 N.E.2d 1118). That is the case here, inasmuch as defendant contends that the Pennsylvania conviction encompasses several crimes, some of which he could not be convicted upon in New York. Inasmuch as defendant failed to contend before the sentencing court that the Pennsylvania conviction would not constitute a conviction in New York based on his age at the time of the crimes, he failed to preserve his contention for our review ( see id.), and we decline to exercise our power to review it as a matter of discretion in the interest of justice ( seeCPL 470.15[6][a] ).
It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law and as a matter of discretion in the interest of justice by reversing that part convicting defendant of sexual abuse in the first degree under the fourth count of the indictment and dismissing that count of the indictment, and as modified the judgment is affirmed.