PEOPLE v. DONNELL (2021)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously modified on the facts and as a matter of discretion in the interest of justice by reversing those parts convicting defendant of coercion in the first degree under counts two and three of the indictment, rape in the first degree under counts four and six of the indictment, and attempted criminal sexual act in the first degree under count eight of the indictment and dismissing those counts of the indictment, and by directing that the sentences imposed on counts five, seven, and nine of the indictment run concurrently with each other, and as modified the judgment is affirmed.

Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, of four counts of rape in the first degree (Penal Law § 130.35 [1], [2]), two counts of attempted criminal sexual act in the first degree (§§ 110.00, 130.50 [1], [2]), and two counts of coercion in the first degree (§ 135.65 [1]). We modify.

Viewing the evidence independently and 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 [2007]; People v. Dexter, 191 A.D.3d 1246, 1246-1247, 137 N.Y.S.3d 769 [4th Dept. 2021], lv denied 36 N.Y.3d 1119, 146 N.Y.S.3d 215, 169 N.E.3d 573 [2021]), we agree with defendant that the verdict is against the weight of the evidence on the counts of rape in the first degree predicated upon a theory of forcible compulsion (Penal Law § 130.35 [1]) and on the count of attempted criminal sexual act in the first degree predicated upon a theory of forcible compulsion (§§ 110.00, 130.50 [1]). “Forcible compulsion involves either the use of ‘physical force’ or ‘a threat, express or implied, which places [the victim] in fear of immediate death or physical injury’ ․ in an effort to force the victim to submit to a defendant's advances” (People v. Hemingway, 85 A.D.3d 1299, 1301, 925 N.Y.S.2d 677 [3d Dept. 2011], quoting § 130.00 [8] [a], [b]). Here, the trial evidence established that defendant physically abused the victim on two different occasions, that defendant once made a vague reference to the victim about having harmed someone in New Jersey on an unknown prior occasion, and that defendant and the victim had repeated sexual contact over the course of a month. The People, however, failed to establish beyond a reasonable doubt that defendant used either physical force or a threat to compel or attempt to compel the victim to engage in any particular sex act (see e.g. People v. Aponte, 89 A.D.3d 1429, 1429, 932 N.Y.S.2d 627 [4th Dept. 2011], lv denied 18 N.Y.3d 955, 944 N.Y.S.2d 483, 967 N.E.2d 708 [2012]; Hemingway, 85 A.D.3d at 1301-1302, 925 N.Y.S.2d 677; People v. Chapman, 54 A.D.3d 507, 508-509, 862 N.Y.S.2d 660 [3d Dept. 2008]; People v. Fuller, 50 A.D.3d 1171, 1175, 854 N.Y.S.2d 594 [3d Dept. 2008], lv denied 11 N.Y.3d 788, 866 N.Y.S.2d 614, 896 N.E.2d 100 [2008]; People v. Howard, 163 A.D.2d 846, 846-847, 558 N.Y.S.2d 376 [4th Dept. 1990], lv denied 77 N.Y.2d 996, 571 N.Y.S.2d 921, 575 N.E.2d 407 [1991]). The existence of physical abuse between parties to an ongoing sexual relationship does not automatically make every sex act or attempted sex act within that relationship a product of forcible compulsion, and here the People failed to link any particular sex act or attempted sex act to any physically abusive conduct or purportedly threatening commentary on defendant's part. We therefore modify the judgment on the facts by reversing those parts convicting defendant of rape in the first degree under counts four and six of the indictment and attempted criminal sexual act in the first degree under count eight of the indictment and dismissing those counts (see CPL 470.15 [5]; 470.20 [5]). In light of our determination, we “need not reach the issue of whether the evidence [on those counts] was legally sufficient” (Matter of Arnaldo R., 24 A.D.3d 326, 328, 807 N.Y.S.2d 327 [1st Dept. 2005], appeal dismissed 6 N.Y.3d 824, 813 N.Y.S.2d 41, 846 N.E.2d 472 [2006]; see generally People v. Clayton, 175 A.D.3d 963, 967, 108 N.Y.S.3d 94 [4th Dept. 2019]).

Again viewing the evidence independently and in light of the elements of the crimes as charged to the jury (see Danielson, 9 N.Y.3d at 349, 849 N.Y.S.2d 480, 880 N.E.2d 1; Dexter, 191 A.D.3d at 1246-1247, 137 N.Y.S.3d 769), we further agree with defendant that the verdict is against the weight of the evidence on the counts of coercion in the first degree (Penal Law § 135.65 [1]). Specifically, the People failed to prove, beyond a reasonable doubt, that the victim was compelled or induced into any particular conduct by defendant's alleged statements (see e.g. People v. Singh, 109 A.D.3d 1010, 1012, 971 N.Y.S.2d 544 [2d Dept. 2013], lv denied 23 N.Y.3d 1067, 994 N.Y.S.2d 326, 18 N.E.3d 1147 [2014]; People v. Bens, 5 A.D.3d 391, 392, 772 N.Y.S.2d 711 [2d Dept. 2004], lv denied 2 N.Y.3d 796, 781 N.Y.S.2d 295, 814 N.E.2d 467 [2004]). We therefore further modify the judgment on the facts by reversing those parts convicting defendant of coercion in the first degree under counts two and three of the indictment and dismissing those counts (see CPL 470.15 [5]; 470.20 [5]), and we likewise “need not reach the issue of whether the evidence [on those counts] was legally sufficient” (Arnaldo R., 24 A.D.3d at 328, 807 N.Y.S.2d 327).

We reject, however, defendant's challenges to the legal sufficiency and weight of the evidence on the charges of rape in the first degree predicated upon a theory of physical helplessness (Penal Law § 130.35 [2]) and on the charge of attempted criminal sexual act in the first degree predicated upon a theory of physical helplessness (§§ 110.00, 130.50 [2]; see People v. Shevchenko, 175 A.D.3d 922, 923-924, 107 N.Y.S.3d 555 [4th Dept. 2019], lv denied 34 N.Y.3d 1019, 114 N.Y.S.3d 747, 138 N.E.3d 476 [2019]; see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987]).

Defendant's claim of prosecutorial misconduct on summation is unpreserved for appellate review (see People v. Carlson, 184 A.D.3d 1139, 1142, 125 N.Y.S.3d 803 [4th Dept. 2020], lv denied 35 N.Y.3d 1064, 129 N.Y.S.3d 374, 152 N.E.3d 1176 [2020]). In any event, reversal is unwarranted because the prosecutor's comments did not “deprive defendant of a fair trial” on the three charges that are supported by the weight of the evidence (id.). We nevertheless take this opportunity to reprove the prosecutor for her misstatement of the record during her summation, in which she purported to quote verbatim a statement made by defendant to a trial witness. The prosecutor's recounting of the purported verbatim quote was materially incorrect, and it transformed the relatively benign—albeit crude—statement that defendant actually made into a far more sinister statement that could be construed as a confession. The prosecutor then compounded her error by arguing, without any record support, that defendant was “bragging” to the trial witness about committing rape. We again remind the People that “[p]rosecutors play a distinctive role in the search for truth in criminal cases. As public officers they are charged not simply with seeking convictions but also with ensuring that justice is done. This role gives rise to special responsibilities—constitutional, statutory, ethical, personal—to safeguard the integrity of criminal proceedings and fairness in the criminal process” (id. [internal quotation marks omitted]).

The aggregate sentence is unduly harsh and severe given defendant's advanced age and lack of any criminal record (see CPL 470.15 [6] [b]). We therefore further modify the judgment as a matter of discretion in the interest of justice by directing that all remaining sentences run concurrently with each other (see CPL 470.20 [6]).

We have considered and rejected defendant's remaining contention.