PEOPLE v. WITHERSPOON (2009)

In appeal No. 1, defendant appeals from a judgment convicting him following a jury trial of, inter alia, rape in the first degree (Penal Law § 130.35[2] ) and, in appeal No. 2, he appeals from a judgment convicting him following the same trial of criminal sale of a controlled substance in the fifth degree (§ 220.31).

Viewing the evidence in light of the elements of the crime of rape in the first degree 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 conclude that the verdict is not against the weight of the evidence with respect to that crime (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). The jury was entitled to infer that defendant engaged in nonconsensual sexual intercourse with the victim, in light of the evidence that the victim was physically unable to respond to defendant's advances after consuming a drink that had been laced with a prescription sleeping pill (see People v. Smith, 16 A.D.3d 1033, 1034, 790 N.Y.S.2d 805, affd 6 N.Y.3d 827, 817 N.Y.S.2d 575, 850 N.E.2d 622, cert denied 548 U.S. 905, 126 S.Ct. 2971, 165 L.Ed.2d 953; People v. Williams, 40 A.D.3d 1364, 1366, 837 N.Y.S.2d 384, lv denied 9 N.Y.3d 927, 844 N.Y.S.2d 182, 875 N.E.2d 901). “ ‘[R]esolution of issues of credibility, as well as the weight to be accorded to the evidence presented, are primarily questions to be determined by the jury’ “ (People v. Sorrentino, 12 A.D.3d 1197, 1197, 785 N.Y.S.2d 260, lv denied 4 N.Y.3d 748, 790 N.Y.S.2d 661, 824 N.E.2d 62), and the testimony of the victim with respect to the issue of penetration “ ‘was not so inconsistent or unbelievable as to render it incredible as a matter of law’ “ (People v. Johnson, 56 A.D.3d 1172, 1173, 868 N.Y.S.2d 433, lv denied 11 N.Y.3d 926, 874 N.Y.S.2d 11, 902 N.E.2d 445). The further contention of defendant that the evidence before the grand jury was legally insufficient with respect to the rape count “is not reviewable upon an appeal from an ensuing judgment of conviction based upon legally sufficient trial evidence” (CPL 210.30[6]; see People v. Prindle, 63 A.D.3d 1597, 880 N.Y.S.2d 428). Likewise, there is no merit to defendant's contention that the date of the crimes specified in the indictments was not sufficiently specific (see People v. Furlong, 4 A.D.3d 839, 840-841, 772 N.Y.S.2d 779, lv denied 2 N.Y.3d 739, 778 N.Y.S.2d 465, 810 N.E.2d 918; see generally People v. Keindl, 68 N.Y.2d 410, 416-417, 509 N.Y.S.2d 790, 502 N.E.2d 577).

We further conclude that there is no merit to the contention of defendant that he was denied a fair trial by prosecutorial misconduct. Defendant's general objection to a comment of the prosecutor on summation is insufficient to preserve for our review defendant's present contention with respect to that comment (see People v. Tonge, 93 N.Y.2d 838, 688 N.Y.S.2d 88, 710 N.E.2d 653; People v. Beggs, 19 A.D.3d 1150, 796 N.Y.S.2d 826, lv denied 5 N.Y.3d 803, 803 N.Y.S.2d 32, 836 N.E.2d 1155), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ). With respect to defendant's contention that concerns an outburst in which the prosecutor threw a water bottle during defense counsel's cross-examination of the victim, we note that defense counsel was also at fault for the incident (see generally People v. Edwards, 134 A.D.2d 609, 521 N.Y.S.2d 502), and we conclude in any event that County Court's instruction to the jury to disregard the incident was sufficient to alleviate any prejudice to defendant (see generally People v. Young, 55 A.D.3d 1234, 1236, 864 N.Y.S.2d 584, lv denied 11 N.Y.3d 901, 873 N.Y.S.2d 277, 901 N.E.2d 771). There is no support in the record for defendant's contention that the prosecutor had coached the victim to give certain responses during defense counsel's cross-examination of her, in order to impede the cross-examination (see generally People v. White, 168 A.D.2d 962, 963, 565 N.Y.S.2d 344, lv denied 77 N.Y.2d 968). Finally, we conclude that defendant was not denied a fair trial by prosecutorial misconduct based on a heated exchange between the prosecutor and defense counsel while defense counsel was cross-examining a witness, particularly in view of the fact that defense counsel was an equal participant in the exchange (see generally Edwards, 134 A.D.2d 609, 521 N.Y.S.2d 502).

Contrary to defendant's further contention, the court properly refused to suppress a statement made by defendant to the police during the search of his home. Any alleged deficiency in the CPL 710.30 notice is of no moment inasmuch as defendant sought to suppress the statement and the court, following a Huntley hearing, determined that it was admissible (see CPL 710.30[3]; People v. Kirkland, 89 N.Y.2d 903, 904-905, 653 N.Y.S.2d 256, 675 N.E.2d 1208; People v. Rivera, 306 A.D.2d 186, 187, 761 N.Y.S.2d 217, lv denied 100 N.Y.2d 598, 766 N.Y.S.2d 174, 798 N.E.2d 358). We perceive no basis to disturb the court's resolution of credibility issues at that hearing (see generally People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380), and we reject the contention of defendant that he was in custody when he made the statement and thus that his statement should have been suppressed because he had not received his Miranda warnings (see generally People v. Yukl, 25 N.Y.2d 585, 589, 307 N.Y.S.2d 857, 256 N.E.2d 172, cert denied 400 U.S. 851, 91 S.Ct. 78, 27 L.Ed.2d 89; People v. Lavere, 236 A.D.2d 809, 654 N.Y.S.2d 61, lv denied 90 N.Y.2d 860, 661 N.Y.S.2d 187, 683 N.E.2d 1061). Inasmuch as the statement was spontaneous, it cannot be said that it was the product of interrogation (see People v. Jacobson, 60 A.D.3d 1326, 1327, 876 N.Y.S.2d 259, lv denied 12 N.Y.3d 916, 884 N.Y.S.2d 697, 912 N.E.2d 1078), or that it was obtained in violation of defendant's right to counsel (see People v. Fortino, 61 A.D.3d 1410, 1411, 876 N.Y.S.2d 811; People v. Adams, 244 A.D.2d 897, 898-899, 665 N.Y.S.2d 991, lv denied 91 N.Y.2d 887, 888, 669 N.Y.S.2d 2, 691 N.E.2d 1028).

We also reject the contention of defendant that the court erred in admitting in evidence a buccal swab collected from him, sample evidence collected from an open bottle found near the scene of the crimes, and results of the testing of that sample evidence. Defendant's challenges to the admission in evidence of the buccal swab and the results of the testing of the sample evidence are not preserved for our review (see generally People v. Caswell, 56 A.D.3d 1300, 1303, 867 N.Y.S.2d 638, lv denied 11 NY3d 923, 12 NY3d 781; People v. Cooper, 147 A.D.2d 926, 537 N.Y.S.2d 700, lv denied 74 N.Y.2d 738, 545 N.Y.S.2d 112, 543 N.E.2d 755), and we decline to exercise our power to review those challenges as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ). Moreover, there is no merit to defendant's contention that the court erred in admitting the sample evidence itself. “ ‘Where, as here, the circumstances provide reasonable assurances of the identity and unchanged condition of the evidence, any deficiencies in the chain of custody go to the weight of the evidence and not its admissibility’ “ (Caswell, 56 A.D.3d at 1303, 867 N.Y.S.2d 638; see People v. Hawkins, 11 N.Y.3d 484, 494, 872 N.Y.S.2d 395, 900 N.E.2d 946).

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

MEMORANDUM: