Opinion
2019–12269 Ind. No. 674/18
03-15-2023
The PEOPLE, etc., respondent, v. Lionel WILLIAMS, appellant.
Alex Smith, Middletown, NY, for appellant. David M. Hoovler, District Attorney, Goshen, NY (Robert H. Middlemiss of counsel), for respondent.
Alex Smith, Middletown, NY, for appellant.
David M. Hoovler, District Attorney, Goshen, NY (Robert H. Middlemiss of counsel), for respondent.
MARK C. DILLON, J.P., ROBERT J. MILLER, LINDA CHRISTOPHER, BARRY E. WARHIT, JJ.
DECISION & ORDER Appeal by the defendant from a judgment of the County Court, Orange County (Craig Stephen Brown, J.), rendered September 30, 2019, convicting him of attempted rape in the first degree and tampering with physical evidence (two counts), upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant was charged by indictment with three counts of attempted rape in the first degree ( Penal Law §§ 110.00, 130.35 ) (counts 1, 3, and 5) and three counts of sexual abuse in the first degree ( Penal Law § 130.65[1] ) (counts 2, 4, and 6) arising out of an uninterrupted course of conduct occurring during the same time frame and at the same location. As amplified by the bill of particulars, counts 3 and 4 occurred subsequent to counts 1 and 2, and counts 5 and 6 occurred subsequent to counts 3 and 4. For purposes of differentiating between the counts for the jury, the counts were distinguished by the position of the victim; counts 1 and 2, face to face with the defendant; counts 3 and 4, face down; counts 5 and 6, standing. The defendant was also charged with two counts of tampering with physical evidence ( Penal Law § 215.40 ) (counts 7 and 8). The jury convicted the defendant of attempted rape in the first degree under count 3 and tampering with physical evidence under counts 7 and 8, but acquitted him of all of the other charges.
The defendant's contention that there was legally insufficient evidence to support his convictions is partially unpreserved for appellate review (see CPL 470.05[2] ; People v. Hawkins, 11 N.Y.3d 484, 872 N.Y.S.2d 395, 900 N.E.2d 946 ). In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5] ; People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).
The defendant's contention that the submission of multiplicitous counts to the jury violated his state and federal constitutional rights to a fair trial and due process is unpreserved for appellate review (see CPL 470.05[2] ). In any event, the counts charging attempted rape in the first degree (counts 1, 3, and 5) as set forth in the indictment, and as amplified by the bill of particulars, are multiplicitous, as all three counts are based on a single, uninterrupted incident occurring on the same day during the same time frame (see People v. Alonzo, 16 N.Y.3d 267, 269–270, 920 N.Y.S.2d 302, 945 N.E.2d 495 ; People v. Campbell, 120 A.D.3d 827, 827, 991 N.Y.S.2d 341 ; People v. Jagdharry, 118 A.D.3d 722, 723, 987 N.Y.S.2d 91 ). The issue, however, has been rendered academic because the jury acquitted the defendant of counts 1 and 5 (see People v. Harris, 129 A.D.3d 990, 13 N.Y.S.3d 443 ; People v. Stabb, 9 A.D.3d 738, 779 N.Y.S.2d 866 ; People v. Smith, 113 A.D.2d 905, 493 N.Y.S.2d 623 ). Furthermore, and contrary to the defendant's contention, the verdict convicting the defendant of attempted rape in the first degree under count 3, but acquitting him of attempted rape in the first degree under counts 1 and 5 is not repugnant. "[A] verdict is repugnant only if it is legally impossible—under all conceivable circumstances—for the jury to have convicted the defendant on one count but not the other," and "[i]f there is a possible theory under which a split verdict could be legally permissible, it cannot be repugnant, regardless of whether that theory has evidentiary support in a particular case" ( People v. Muhammad, 17 N.Y.3d 532, 539–540, 935 N.Y.S.2d 526, 959 N.E.2d 463 ). "A jury is ... free to extend leniency and may decide not to convict a defendant of one or more charges notwithstanding the court's legal instructions" ( People v. Muhammad, 17 N.Y.3d at 539, 935 N.Y.S.2d 526, 959 N.E.2d 463 ; see People v. Tucker, 55 N.Y.2d 1, 4, 6–7, 447 N.Y.S.2d 132, 431 N.E.2d 617 ). Based on the instructions given to the jury and viewed from a theoretical perspective without regard to the evidence at trial, it was possible for the jury to convict the defendant of attempted rape in the first degree under count 3 and acquit him of attempted rape in the first degree under counts 1 and 5 (see People v. Muhammad, 17 N.Y.3d at 541, 935 N.Y.S.2d 526, 959 N.E.2d 463 ). Moreover, the jury may have "exercised mercy" ( People v. Tucker, 55 N.Y.2d at 7, 447 N.Y.S.2d 132, 431 N.E.2d 617 ; see People v. Nicoletti, 189 A.D.3d 1082, 1083, 133 N.Y.S.3d 865 ).
The defendant's contention that the County Court erred in denying his application for a mistrial is without merit. The decision to grant a mistrial lies within the sound discretion of the trial court, which is in the best position to determine whether a mistrial is necessary to protect the defendant's right to a fair trial (see People v. Ortiz, 54 N.Y.2d 288, 292, 445 N.Y.S.2d 116, 429 N.E.2d 794 ). In balancing the proper considerations, a court should consider "the availability of less drastic means of alleviating whatever prejudice may have resulted" from the error ( People v. Young, 48 N.Y.2d 995, 996, 425 N.Y.S.2d 546, 401 N.E.2d 904 ). Here, the defendant's request for a mistrial stemmed from his contention that a statement made by a detective during his testimony indicating that the defendant "was a known registered sex offender in the area," in effect, violated the court's prior Sandoval/Ventimiglia ruling (see People v. Ventimiglia, 52 N.Y.2d 350, 438 N.Y.S.2d 261, 420 N.E.2d 59 ; People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413 ). However, the court properly struck that portion of the detective's testimony and instructed the jury to disregard it, which instruction the jury is presumed to have followed (see People v. Martin, 141 A.D.3d 734, 736, 35 N.Y.S.3d 476 ; People v. Brescia, 41 A.D.3d 613, 614, 836 N.Y.S.2d 432 ). Moreover, the court also offered to give an additional curative instruction (see generally People v. Schlackman, 153 A.D.3d 641, 642, 57 N.Y.S.3d 409 ). Any perceived error was harmless in light of the court's instruction to the jury to disregard the stricken portion of the detective's testimony (see People v. Bianchi, 34 A.D.3d 690, 824 N.Y.S.2d 426 ) and the overwhelming evidence of the defendant's guilt (see People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787 ; People v. Bianchi, 34 A.D.3d 690, 824 N.Y.S.2d 426 ).
The County Court properly denied the defendant's request for an adverse inference charge as to a surveillance video showing the defendant in the vicinity of the incident. The record does not establish that the prosecution was ever in possession of such video evidence (see People v. Suchite, 191 A.D.3d 906, 138 N.Y.S.3d 877 ; People v. Robinson, 143 A.D.3d 744, 745, 38 N.Y.S.3d 601 ). The defendant's contention that the sentence imposed improperly penalized him for exercising his right to trial is unpreserved for appellate review (see People v. Hargroves, 27 A.D.3d 765, 765, 815 N.Y.S.2d 605 ). In any event, the contention is without merit (see People v. Acosta, 177 A.D.3d 581, 109 N.Y.S.3d 894 ; People v. Durkin, 132 A.D.3d 668, 669, 518 N.Y.S.2d 38 ). The sentence imposed was not otherwise excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
The defendant's remaining contention is without merit.
DILLON, J.P., MILLER, CHRISTOPHER and WARHIT, JJ., concur.