PEOPLE v. SCHINNERER (2021)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Schoharie County (Bartlett III, J.), rendered February 20, 2019, upon a verdict convicting defendant of the crimes of rape in the first degree, rape in the third degree and endangering the welfare of a child (two counts).

Defendant was charged by indictment with two counts of rape in the first degree, two counts of rape in the third degree, one count of criminal sexual act in the third degree and three counts of endangering the welfare of a child stemming from allegations that defendant engaged in sexual intercourse with the 16–year–old victim on two separate occasions and performed oral sex on her on one occasion.  Prior to trial, County Court dismissed the one count of criminal sexual act in the third degree and one count of endangering the welfare of the child based upon legal insufficiency of the grand jury evidence.  At the conclusion of the jury trial, defendant was convicted of one count of rape in the first degree, one count of rape in the third degree and two counts of endangering the welfare of a child.  Defendant was sentenced to a prison term of eight years, to be followed by 20 years of postrelease supervision for his conviction for rape in the first degree and to lesser concurrent terms of incarceration on the remaining counts.  Defendant appeals.

Defendant argues that the verdict as to his conviction for rape in the first degree is not supported by legally sufficient evidence as to the element of forcible compulsion.  “ ‘When considering a challenge to the legal sufficiency of the evidence, we view the evidence in the light most favorable to the People and evaluate whether there is any valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial and as a matter of law satisfy the proof and burden requirements for every element of the crime charged’ ” (People v. Hernandez, 180 A.D.3d 1234, 1235, 116 N.Y.S.3d 799 [2020], lv denied 35 N.Y.3d 993, 125 N.Y.S.3d 630, 149 N.E.3d 391 [2020], quoting People v. Sostre, 172 A.D.3d 1623, 1625, 100 N.Y.S.3d 768 [2019], lv denied 34 N.Y.3d 938, 109 N.Y.S.3d 726, 133 N.E.3d 429 [2019]).  As relevant here, “[a] person is guilty of rape in the first degree when he or she engages in sexual intercourse with another person [b]y forcible compulsion” (Penal Law § 130.35[1]).  Within the context of sex offenses, as relevant here, forcible compulsion means “to compel by ․ use of physical force” (People v. Blackman, 90 A.D.3d 1304, 1306, 935 N.Y.S.2d 181 [2011] [internal quotation marks, ellipses, brackets and citations omitted], lv denied 19 N.Y.3d 971, 950 N.Y.S.2d 353, 973 N.E.2d 763 [2012];  see Penal Law § 130.00[8][a], [b]).

The victim testified that, in April 2017, she was 16 years old and that, during her school break that month, she was in the kitchen when defendant, a relative, picked her up and brought her into his bedroom.  The victim testified that defendant held her on the bed, pulled down her pants and inserted his penis into her vagina.  She explained that defendant “had his weight on top of [her] so he was holding [her] down.”  The victim testified that she screamed and told defendant to stop, but he did not.  Given the foregoing, and viewing the evidence in the light most favorable to the People, there is legally sufficient evidence of forcible compulsion, as well as the remaining elements of rape in the first degree (see People v. Flower, 173 A.D.3d 1449, 1452, 105 N.Y.S.3d 152 [2019], lv denied 34 N.Y.3d 931, 109 N.Y.S.3d 752, 133 N.E.3d 458 [2019];  People v. Melendez, 138 A.D.3d 1159, 1160, 29 N.Y.S.3d 618 [2016], lv denied 27 N.Y.3d 1136, 39 N.Y.S.3d 118, 61 N.E.3d 517 [2016]).

Contrary to defendant's argument, we discern no error with County Court's Molineux ruling.  At trial, the People sought to elicit testimony of defendant “grooming” the victim, which included sexual conduct by defendant prior to the incidents charged in the indictment.  The court properly found that this evidence constituted necessary background information and, as it was more probative than prejudicial, was admissible at trial (see People v. Shofkom, 63 A.D.3d 1286, 1288, 880 N.Y.S.2d 758 [2009], lv denied 13 N.Y.3d 799, 887 N.Y.S.2d 549, 916 N.E.2d 444 [2009], appeal dismissed 13 N.Y.3d 933, 895 N.Y.S.2d 310, 922 N.E.2d 898 [2010];  People v. Rhodes, 91 A.D.3d 1185, 1186, 936 N.Y.S.2d 775 [2012], lv denied 19 N.Y.3d 966, 950 N.Y.S.2d 118, 973 N.E.2d 216 [2012]).  Moreover, this evidence also “demonstrated the escalating nature of the sexual abuse and revealed the manipulative and abusive setting in which the victim lived with defendant” that was contained in the rape in the first degree charges (People v. Shofkom, 63 A.D.3d at 1288, 880 N.Y.S.2d 758;  see People v. Pham, 118 A.D.3d 1159, 1161, 987 N.Y.S.2d 687 [2014], lv denied 24 N.Y.3d 1087, 1 N.Y.S.3d 14, 25 N.E.3d 351 [2014]).  Defendant's assertion that the court failed to deliver a limiting instruction except in its final charge to the jury is devoid of merit.  The record reflects that a limiting instruction, the language of which defendant consented to, was given to the jury following the victim's testimony.  To the extent that defendant contends that the victim's testimony exceeded the court's Molineux ruling, this argument is unpreserved for our review as defendant failed to object to this testimony (see People v. Pitt, 170 A.D.3d 1282, 1284, 95 N.Y.S.3d 459 [2019], lv denied 33 N.Y.3d 1072, 105 N.Y.S.3d 16, 129 N.E.3d 336 [2019];  People v. Echavarria, 53 A.D.3d 859, 863, 861 N.Y.S.2d 510 [2008], lv denied 11 N.Y.3d 832, 868 N.Y.S.2d 606, 897 N.E.2d 1090 [2008]).

Finally, our review of the grand jury minutes does not reveal any errors in presenting the case to the grand jury that “impaired the integrity of the proceedings or caused prejudice to defendant so as to warrant the drastic remedy of reversal” (People v. Gaston, 147 A.D.3d 1219, 1220 n. 2, 47 N.Y.S.3d 753 [2017] [internal quotation marks, brackets and citations omitted];  accord People v. Flower, 173 A.D.3d at 1454, 105 N.Y.S.3d 152 n).  Defendant's remaining contentions have been examined and found to be lacking in merit.

ORDERED that the judgment is affirmed.

Pritzker, J.

Egan Jr., J.P., Clark, Aarons and Colangelo, JJ., concur.