It is hereby ORDERED that the judgment so appealed from is unanimously
reversed on the law and as a matter of discretion in the interest of justice, a
new trial is granted on the first and sixth counts of the indictment, the
fourth count is dismissed, and the fifth count is dismissed without prejudice
to the People to re-present any appropriate charges under that count to another
grand jury. Memorandum: Defendant appeals from a judgment convicting him upon a
jury verdict of rape in the first degree (Penal Law § 130.35 [1]), assault in
the second degree ([felony assault] § 120.05 [6]), strangulation in the second
degree (§ 121.12), and unlawful imprisonment in the first degree (§ 135.10),
arising from allegations that he forcibly raped his estranged wife in the
garage of their former marital residence. Defendant failed to preserve for our
review his challenge to the legal sufficiency of the evidence because “his motion
for a trial order of dismissal was not specifically directed at the grounds
advanced on appeal” (People v Wright, 107 AD3d 1398, 1401, lv denied 23 NY3d
1026; see People v Gray, 86 NY2d 10, 19). We nevertheless exercise our power to
review his challenge as a matter of discretion in the interest of justice (see
CPL 470.15 [6] [a]). We agree with defendant that the conviction of felony
assault and strangulation is not supported by legally sufficient evidence with respect
to the physical injury element (see generally People v Bleakley, 69 NY2d 490,
495). The evidence submitted by the People, i.e., that the victim sustained
minor pain, a one-centimeter bruise on her arm, and a swollen neck, is
insufficient to establish either physical impairment or substantial pain (see
Penal Law § 10.00 [9]; People v Coleman, 134 AD3d 1555, 1555-1556, lv denied 27
NY3d 963; Matter of Antonio J., 129 AD2d 988, 988; cf. People v Delaney, 138 AD3d
1420, 1421, lv denied 28 NY3d 928). Consequently, the felony assault count must
be dismissed. With respect to the strangulation count, we conclude that the
evidence is legally sufficient to support a conviction of the lesser included
offense of criminal obstruction of breathing or blood circulation (Penal Law §
121.11). Because there must be a new trial for the reasons discussed below,
however, count five of the indictment charging defendant with strangulation in
the second degree is dismissed with leave to the People to re-present any appropriate
charges under that count to another grand jury (see generally People v
Gonzalez, 61 NY2d 633, 635). Contrary to defendant’s further contention,
viewing the evidence in the light most favorable to the People (see People v
Contes, 60 NY2d 620, 621), we conclude that the evidence is legally sufficient
to support the conviction of rape and unlawful imprisonment (see generally
Bleakley, 69 NY2d at 495). Furthermore, viewing the evidence in light of the
elements of the crimes of rape in the first degree and unlawful imprisonment as
charged to the jury (see People v Danielson, 9 NY3d 342, 349), we conclude that
the verdict with respect to those crimes is not against the weight of the
evidence (see generally Bleakley, 69 NY2d at 495). Defendant failed to preserve
for our review his contention that the conviction of unlawful imprisonment must
be dismissed based on the merger doctrine (see People v Hanley, 20 NY3d 601, 605-606).
In any event, that contention is without merit (see People v Smith, 47 NY2d 83,
87). Defendant contends that County Court erred in precluding him from introducing
evidence that the victim had previously said, in effect, that she would accuse
defendant of rape in order to obtain a divorce from him. Defendant contends
that the court further erred in striking the testimony of a witness regarding
that statement. Any error in precluding that evidence and striking that
testimony is harmless because “the precluded testimony was essentially
cumulative of other evidence presented at trial . . . , and . . . defendant was
provided a meaningful opportunity to present a complete defense” (People v Ramsey,
59 AD3d 1046, 1048, lv denied 12 NY3d 858 [internal quotation marks omitted];
see People v Davis, 111 AD3d 1302, 1304, lv denied 22 NY3d 1137; see also
People v Herring, 225 AD2d 1065, 1066, lv denied 88 NY2d 937). Defendant’s
contention that he was denied effective assistance of counsel by his attorney’s
failure to object or seek other corrective action with respect to those alleged
errors “is raised for the first time in his reply brief and therefore is not properly
before us” (People v Sponburgh, 61 AD3d 1415, 1416, lv denied 12 NY3d 929; see
People v Spears, 125 AD3d 1400, 1400, lv denied 25 NY3d 1172). We reject
defendant’s contention that the court erred in denying his motion to discharge
a sworn juror. During the trial, that juror indicated to a court officer that a
courtroom spectator seated near the defense table had befriended the juror on
social media, and was attempting to contact the juror. The juror concluded that
the spectator was attempting to contact him in order to persuade him to acquit
defendant. In order to discharge a sworn juror, the court “must be convinced
that the juror’s knowledge will prevent [him or] her from rendering an
impartial verdict” (People v Buford, 69 NY2d 290, 299). “On this record, we are
unable to conclude that the court could have been ‘convinced’ . . . , based on
any unequivocal responses of the juror, that the juror was ‘grossly unqualified
to serve in the case’ ” (People v Telehany, 302 AD2d 927, 928, quoting CPL
270.35 [1]; cf. People v Maddox, 175 AD2d 183, 183).
We agree with defendant, however, that the prosecutor
engaged in misconduct on several occasions, and we reach defendant’s unpreserved
contention as a matter of discretion in the interest of justice (see CPL 470.15
[6] [a]). Here, the prosecutor engaged in misconduct during her closing
statement by repeatedly appealing to the jury’s sympathy, asking the jury to do
justice and protect the victim by convicting defendant, bolstering the victim’s
credibility and injecting the prosecutor’s personal opinions into the trial.
Perhaps most egregiously, in arguing that the jury should reject defendant’s testimony
that he confessed falsely to the police because he needed to use the bathroom,
the prosecutor gave her personal opinion regarding defendant’s credibility by
stating that she would sit in her own urine rather than falsely admit that she
committed a crime. “We can only conclude herein that the prosecutor’s
‘inflammatory [comments had] a decided tendency to prejudice the jury against
the defendant’ ” (People v Ballerstein, 52 AD3d 1192, 1194, quoting People v
Ashwal, 39 NY2d 105, 110). Consequently, we conclude that the cumulative effect
of the prosecutorial misconduct, which substantially prejudiced defendant’s
rights (see generally People v Calabria, 94 NY2d 519, 523), requires reversal. Furthermore,
“[i]n light of the foregoing, we agree with defendant’s related contention that
he was denied effective assistance of counsel owing to defense counsel’s
failure to object to the prosecutor’s misconduct during summation” (People v
Rozier, 143 AD3d 1258, 1260, citing People v Wright, 25 NY3d 769, 780-783).
Defense counsel also failed to object when the prosecutor introduced evidence of
prior bad acts despite having failed to seek a ruling regarding the admissibility
thereof, most notably the testimony of a sheriff’s deputy that, months before
this incident, defendant stole the victim’s truck and was arrested for driving
it while intoxicated while on the way to attack a person with whom he believed
the victim was having an affair. Defense counsel also failed to object when the
prosecutor cross-examined defendant regarding that issue. Thus, reversal is
also required because defense counsel was ineffective in “fail[ing] to object
to prejudicial evidence of prior uncharged crimes and bad acts introduced by
the prosecutor” (People v Wiggins, 213 AD2d 965, 965). Contrary to defendant’s
further contention, however, the court did not err in refusing to suppress his
statements to the police.
With respect to defendant’s contention that he was too
intoxicated to waive his rights, the record of the suppression hearing does not
establish that, at the time he waived his Miranda rights, he was intoxicated “
‘to the degree of mania, or of being unable to understand the meaning of his
statements’ ” (People v Schompert, 19 NY2d 300, 305, cert denied 389 US 874;
see People v Beasley, 147 AD3d 1549, 1550; People v Peterkin, 89 AD3d 1455,
1455, lv denied 18 NY3d 885). With respect to defendant’s further contention
that the interrogating officers used leading questions that prompted him to waive
his rights and undermined the voluntariness of the confession, “it cannot be
said that the interrogation was fundamentally unfair or that it induced
defendant falsely to incriminate himself” (People v Salgado, 130 AD2d 960, 961,
lv denied 70 NY2d 754; see generally People v Gutierrez, 96 AD3d 1455, 1455, lv
denied 19 NY3d 997).
Finally, with respect to defendant’s contention that his
statements were involuntary because he was questioned over a two-hour period,
it is axiomatic that the length of the interrogation period “does not, by itself,
render the statement[s] involuntary” (People v Weeks, 15 AD3d 845, 847, lv
denied 4 NY3d 892; see People v Clark, 139 AD3d 1368, 1369, lv denied 28 NY3d
928). Here, viewing “the totality of the circumstances surrounding the interrogation”
(People v Knapp, 124 AD3d 36, 41 [internal quotation marks omitted]), we
conclude that “[t]he record of the suppression hearing supports the court’s
determination that defendant knowingly, voluntarily and intelligently waived
his Miranda rights before making the statement[s]” (People v Irvin, 111 AD3d
1294, 1295, lv denied 24 NY3d 1044, reconsideration denied 26 NY3d 930; see
People v Holland, 126 AD3d 1514, 1515, lv denied 25 NY3d 1165).
Defendant’s further contentions are academic in light of our
determination.
Entered: May 5, 2017
Frances E. Cafarell,
Clerk
of the Court
