Appeal from a judgment of the County Court of Franklin County (Main Jr., J.), rendered May 18, 2009, upon a verdict convicting defendant of the crimes of rape in the first degree, attempted assault in the second degree, grand larceny in the fourth degree, identity theft in the second degree, unlawful possession of personal identification information in the third degree, assault in the third degree (five counts), petit larceny (two counts), unlawful imprisonment in the second degree (two counts), criminal mischief in the fourth degree and menacing in the second degree.
Defendant was charged in a 21-count indictment with various crimes allegedly committed against his paramour. Following a jury trial, he was found guilty of 16 counts: rape in the first degree, attempted assault in the second degree, grand larceny in the fourth degree, identity theft in the second degree, unlawful possession of personal identification information in the third degree, assault in the third degree (five counts), petit larceny (two counts), unlawful imprisonment in the second degree (two counts), criminal mischief in the fourth degree and menacing in the second degree. County Court sentenced him to an aggregate prison term of 18 years, followed by 20 years of postrelease supervision, as well as fines and restitution. Defendant appeals.
The conviction of rape in the first degree was not against the weight of the evidence. To establish that crime, the People were required to prove that defendant engaged in sexual intercourse with the victim by forcible compulsion (see Penal Law § 130.35 [1]). Forcible compulsion is defined to include physical force or a
The conviction of attempted assault in the second degree was also not against the weight of the evidence. To prove that crime, the People needed to show that defendant intended to cause serious physical injury to another person and “ engage [d] in conduct which tend[ed] to effect the commission of such crime” (Penal Law § 110.00; see Penal Law § 120.05 [1]). Attempted assault in the second degree can be proven without any serious physical injury or even any physical injury; “all that is required is that the defendant ‘intended such injury and engaged in conduct directed at accomplishing that objective’ ” (People v Agron, 106 AD3d 1126, 1128 [2013], lv denied 21 NY3d 1013 [2013], quoting People v Audi, 88 AD3d 1070, 1072 [2011], lv denied 18 NY3d 856 [2011]; see People v Johnson, 107 AD3d 1161, 1163 [2013], lv denied 21 NY3d 1075 [2013]). Intent can be inferred from a defendant’s conduct and the surrounding circumstances (see People v Naradzay, 11 NY3d 460, 467 [2008]; People v Carte, 113 AD3d 191, 195 [2013], lv denied 23 NY3d 1035 [2014]). In his statement to police, defendant said that after they had consensual sex, the victim became agitated and he
The merger doctrine is inapplicable here. That doctrine prevents a conviction for kidnapping or a similar crime based on acts that are an integral part of another substantive crime, so as to preclude independent criminal liability (see People v Gonzalez, 80 NY2d 146, 153 [1992]; People v Woodard, 93 AD3d 944, 948 [2012]). While the choking of the victim was one of the acts constituting the element of forcible compulsion for the rape count, it was also a discrete act that was not necessary for the commission of the rape and was an independent crime warranting separate punishment (see People v Woodard, 93 AD3d at 948-949).
County Court did not err in denying defendant’s motion to sever certain counts of the indictment. While the counts charging defendant with the theft and use of the victim’s debit card and camera were based on different criminal transactions than the counts related to the physical abuse he perpetrated on her, offenses are joinable in a single indictment if proof of one
Defendant was not deprived of a fair trial by the testimony of the People’s expert. The expert was properly permitted to testify regarding rape trauma syndrome and battered spouse syndrome to explain to the jury why a victim may exhibit certain behavior or engage in certain actions that jurors might not expect or understand (see People v Williams, 20 NY3d 579, 584 [2013]; People v Spicola, 16 NY3d 441, 463 [2011], cert denied 565 US —, 132 S Ct 400 [2011]; People v Taylor, 75 NY2d 277, 289 [1990]). The expert had never met the victim or reviewed any reports about the charged crimes and did not render an opinion about the victim’s credibility, whether she had been the victim of sexual abuse or whether her behavior fit within the syndromes (see People v Spicola, 16 NY3d at 465-466; People v Jabaut, 111 AD3d 1140, 1145 [2013], lv denied 22 NY3d 1139 [2014]). Although the expert discussed the behavior of abusers, that testimony was necessary to explain the cycle of domestic violence and how victims respond to their abusers (see People v Diaz, 20 NY3d 569, 575 [2013]; People v Williams, 20 NY3d at 584). The People did not ask inappropriate hypothetical questions that were tailored to the facts of this case; rather, the expert’s testimony closely reflected the victim’s testimony in some regards because it appears that the relationship between the victim and defendant resembled a classic example of a domestic violence relationship (see People v Diaz, 20 NY3d at 575-576; compare People v Williams, 20 NY3d at 584).
The content of the verdict sheet did not constitute error per se, as defendant consented to the annotated verdict sheet and no mode of proceedings error occurred so as to circumvent the preservation requirement. CPL 310.20 (2) allows the trial court, when submitting two or more counts charging offenses from the same article of law, to “set forth the dates, names of complainants or specific statutory language, without defining the terms, by which the counts may be distinguished.” Absent a defend
Here, County Court included the dates for all offenses, even for counts that were the only offenses charged under a particular article of the law. Although most of the counts charged an offense where at least one other count was alleged under the same article, some were annotated with dates, time of day, the victim’s name and language not from the relevant statute but from the indictment. Although the dates and victim’s name were authorized by statute in the latter circumstances, the dates in the former circumstances and the indictment language were not (see CPL 310.20 [2]).2 Despite this variation from the statute, defendant consented to the annotated verdict sheet. While defendant now argues that the record does not show his consent to the final version of the verdict sheet, counsel saw a prior version during a conference, he asked for specific changes, the court stated the changes it would make in response to the defense request, the final version contains those changes and defendant did not object prior to the court giving the verdict sheet to the jury. Under the circumstances, although it appears that counsel and defendant explicitly consented, they at least impliedly consented to the annotations, which is sufficient (see People v Washington, 9 AD3d at 500-501). Although the court did not instruct the jury regarding those notations, as required by statute (see CPL 310.20 [2]), defendant failed to preserve that argument through a proper objection (see People v Hicks, 12 AD3d 1044, 1045 [2004], lv denied 4 NY3d 799 [2005]). The omission of such limiting instructions and deviation from the statutorily-authorized annotations to the verdict sheet do not constitute mode of proceedings errors that would require reversal regardless of preservation (see People v Wheeler, 257 AD2d 673, 673-674 [1999], lv denied 93 NY2d 930 [1999]; see also People v Agramonte, 87 NY2d 765, 769-770 [1996]; People v Mariko, 267 AD2d 113, 113 [1999], lv denied 94 NY2d 950 [2000]).
County Court did not err in its Molineux/Ventimiglia ruling.
Defendant received meaningful representation. When reviewing a claim of ineffective assistance of counsel, courts must avoid confusing actual ineffectiveness with mere losing tactics, and a defendant must demonstrate the absence of strategic or reasonable explanations for counsel’s alleged shortcomings (see People v Benevento, 91 NY2d 708, 712 [1998]). To prevail on such a claim, any errors by counsel must be “so egregious and prejudicial as to render the trial unfair” (People v Timberlake, 42 AD3d 761, 762 [2007]). Here, counsel did not fail to provide meaningful representation through his lack of an objection to the comments of a potential juror during voir dire regarding the reputation of a police officer who was to be a witness. County Court asked follow-up questions that diminished the possible negative effects of those comments and instructed the jurors that they must scrutinize the testimony of police officers as they would the testimony of any other witness, thereby neutralizing any likelihood of substantial prejudice to defendant (see People v Wells, 7 NY3d 51, 60 [2006]). Thus, counsel’s failure to request further curative instructions did not constitute ineffective assistance.
While defendant now attacks counsel’s cross-examination of
We have reviewed defendant’s remaining contentions and find them to be without merit.
Ordered that the judgment is affirmed.
1.
We reject defendant’s argument assigning error to the use of the word “strangling” in the indictment while the testimony referred to him “choking” the victim. Contrary to his assertion that strangulation was inaccurately used here because it means to kill by choking, the terms strangling and choking are often used interchangeably (see e.g. People v Bonney, 69 AD3d 1116, 1117 [2010], lv denied 14 NY3d 838 [2010]), and the Penal Law does not require death to prove strangulation (see e.g. Penal Law § 121.12 [enacted after defendant’s conviction, creating new crime of “strangulation in the second degree”]; Penal Law § 121.13).
2.
Notably, the time of day was helpful to clarify certain charges, particularly the three counts of attempted assault in the second degree based on defendant choking the same victim at different times during the same day. The annotations permitted by statute would not have been sufficient to differentiate those counts.