Opinion
538 KA 13-01797
06-19-2015
The PEOPLE of the State of New York, Respondent, v. Kurt J. HAZZARD, Defendant–Appellant.
Bruce R. Bryan, Syracuse, for Defendant–Appellant. Leanne K. Moser, District Attorney, Lowville, D.J. & J.A. Cirando, Esqs., Syracuse (John A. Cirando of Counsel), for Respondent.
Bruce R. Bryan, Syracuse, for Defendant–Appellant.
Leanne K. Moser, District Attorney, Lowville, D.J. & J.A. Cirando, Esqs., Syracuse (John A. Cirando of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., SMITH, SCONIERS, WHALEN, and DeJOSEPH, JJ.
Opinion
MEMORANDUM:Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, rape in the first degree (Penal Law § 130.35 [1 ] ), arising from allegations that he had sexual intercourse with a 15–year–old girl on December 25, 2011. On appeal, defendant contends that County Court abused its discretion in denying his recusal motion. We reject that contention. It is well settled that, “[u]nless disqualification is required under Judiciary Law § 14, a judge's decision on a recusal motion is one of discretion ... ‘This discretionary decision is within the personal conscience of the court when the alleged appearance of impropriety arises from inappropriate awareness of nonjuridical data’ ... [Thus,] for any alleged bias and prejudice to be disqualifying it ‘must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his [or her] participation in the case’ ” (People v. Glynn, 21 N.Y.3d 614, 618, 977 N.Y.S.2d 692, 999 N.E.2d 1137 ; see People v. Alomar, 93 N.Y.2d 239, 246, 689 N.Y.S.2d 680, 711 N.E.2d 958 ). “Even ... when recusal is sought based upon ‘impropriety as distinguished from legal disqualification, the judge ... is the sole arbiter’ ” (People v. Moreno, 70 N.Y.2d 403, 406, 521 N.Y.S.2d 663, 516 N.E.2d 200 ). Defendant does not contend that recusal was mandatory, and we agree with the People that the court did not abuse its discretion in denying defendant's motion.
We reject defendant's further contention that the court erred in refusing to suppress a towel upon which both the victim's DNA and defendant's DNA, sperm, and seminal fluid were found. At the time of the offense, the victim's grandmother had custody of the victim and her siblings, and they and defendant all lived in the same house. The towel was found in that house by the victim and her mother's boyfriend, who went there to retrieve the victim's belongings after this incident was reported to the authorities. “It is well settled that a search by a private person, even an unlawful search, does not implicate Fourth Amendment considerations” (People v. Adler, 50 N.Y.2d 730, 736–737, 431 N.Y.S.2d 412, 409 N.E.2d 888, cert. denied 449 U.S. 1014, 101 S.Ct. 573, 66 L.Ed.2d 473 ), unless the private conduct is “so pervaded by governmental involvement that it loses its character as such and invokes the full panoply of constitutional protections” (People v. Ray, 65 N.Y.2d 282, 286, 491 N.Y.S.2d 283, 480 N.E.2d 1065 ). Here, defendant failed to demonstrate “a clear connection between the police and the private investigation ...; completion of the private act at the instigation of the police ...; close supervision of the private conduct by the police ...; [or] a private act undertaken on behalf of the police to further a police objective” (Ray, 65 N.Y.2d at 286, 491 N.Y.S.2d 283, 480 N.E.2d 1065 ; see People v. Ruppert, 42 A.D.3d 817, 817–818, 839 N.Y.S.2d 866, lv. denied 9 N.Y.3d 964, 848 N.Y.S.2d 33, 878 N.E.2d 617 ).
Contrary to defendant's further contention, viewing the evidence in light of the elements of the crimes relating to the December incident 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 (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). It is well settled that “ ‘those who see and hear the witnesses can assess their credibility and reliability in a manner that is far superior to that of reviewing judges who must rely on the printed record’ ” (People v. Woolson, 122 A.D.3d 1353, 1354, 997 N.Y.S.2d 865, quoting People v. Lane, 7 N.Y.3d 888, 890, 826 N.Y.S.2d 599, 860 N.E.2d 61 ), and that “[t]he credibility of the victim and the weight to be accorded her testimony were matters for the jury” (People v. Halwig, 288 A.D.2d 949, 949, 732 N.Y.S.2d 208, lv. denied 98 N.Y.2d 710, 749 N.Y.S.2d 8, 778 N.E.2d 559 ; see People v. Gray, 15 A.D.3d 889, 890, 788 N.Y.S.2d 792, lv. denied 4 N.Y.3d 831, 796 N.Y.S.2d 586, 829 N.E.2d 679 ). Here, we conclude that the jury's determination to credit the victim's testimony with respect to this incident is supported by the weight of the evidence, including her testimony that defendant held her down and restrained her while forcing her to engage in sexual intercourse (see People v. Littebrant, 55 A.D.3d 1151, 1154–1155, 867 N.Y.S.2d 550, lv. denied 12 N.Y.3d 818, 881 N.Y.S.2d 26, 908 N.E.2d 934 ), and DNA evidence linking defendant to the crimes (see generally People v. Mitchell, 43 A.D.3d 1337, 1338, 841 N.Y.S.2d 901, lv. denied 9 N.Y.3d 1036, 852 N.Y.S.2d 22, 881 N.E.2d 1209 ; People v. Griffin, 41 A.D.3d 1285, 1287, 837 N.Y.S.2d 812, lv. denied 9 N.Y.3d 923, 844 N.Y.S.2d 178, 875 N.E.2d 897, reconsideration denied 9 N.Y.3d 990, 848 N.Y.S.2d 608, 878 N.E.2d 1024 ). Indeed, we note that the People's DNA expert testified that, in “the semen-stained cutting from the bath towel, the sperm fraction is a mixture profile consistent with DNA from [defendant] mixed with DNA from” the victim.
Defendant further contends that the court erred in prohibiting him from questioning the People's expert regarding prior sexual conduct by the victim. We reject that contention. “Evidence of the victim's prior sexual conduct did not fall within any of the exceptions set forth in CPL 60.42(1) through (4), and defendant failed to make an offer of proof demonstrating that such evidence was relevant and admissible pursuant to CPL 60.42(5) ” (People v. Brink, 30 A.D.3d 1014, 1015, 815 N.Y.S.2d 861, lv. denied 7 N.Y.3d 810, 822 N.Y.S.2d 485, 855 N.E.2d 801 ; see People v. Wright, 37 A.D.3d 1142, 1143, 829 N.Y.S.2d 377, lv. denied 8 N.Y.3d 951, 836 N.Y.S.2d 561, 868 N.E.2d 244 ; see also People v. Williams, 61 A.D.3d 1383, 1383, 879 N.Y.S.2d 264, lv. denied 13 N.Y.3d 751, 886 N.Y.S.2d 105, 914 N.E.2d 1023 ). Defendant failed to preserve for our review his contention that the court should have declared a mistrial after making a gesture that allegedly demeaned defense counsel, inasmuch as defense counsel initially made a motion for a mistrial regarding the alleged gesture but withdrew it “before the court rendered its decision” (People v. Corbett, 258 A.D.2d 919, 919, 685 N.Y.S.2d 520, lv. denied 93 N.Y.2d 898, 689 N.Y.S.2d 710, 711 N.E.2d 986 ). We decline to exercise our power to review defendant's contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).
Finally, the sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is affirmed.
All concur except SCONIERS, J., who dissents and votes to reverse in accordance with the following memorandum:
I respectfully dissent. Viewing the evidence 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 ), I conclude that the verdict finding defendant guilty of the charges arising from the incident on December 25, 2011 is against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). I would therefore reverse the judgment, dismiss the indictment, and remit the matter to County Court for proceedings pursuant to CPL 470.45.
“The Court of Appeals has recently reiterated that, in reviewing the weight of the evidence, we must ‘affirmatively review the record; independently assess all of the proof; substitute [our] own credibility determinations for those made by the jury in an appropriate case; determine whether the verdict was factually correct; and acquit a defendant if [we are] not convinced that the jury was justified in finding that guilt was proven beyond a reasonable doubt’ ” (People v. Oberlander, 94 A.D.3d 1459, 1459, 943 N.Y.S.2d 316, quoting People v. Delamota, 18 N.Y.3d 107, 116–117, 936 N.Y.S.2d 614, 960 N.E.2d 383 ). I am not convinced that guilt was proven beyond a reasonable doubt. Although I am cognizant that the jury's credibility determinations are entitled to great deference, in this case the credibility of certain prosecution witnesses,including the victim, is “manifestly suspect” (People v. O'Neil, 66 A.D.3d 1131, 1133, 887 N.Y.S.2d 705 ; see People v. Bastow, 217 A.D.2d 930, 931, 630 N.Y.S.2d 432, lv. denied 86 N.Y.2d 872, 635 N.Y.S.2d 953, 659 N.E.2d 776 ). Indeed, “the jury evidently had little confidence in the victim's credibility since it acquitted defendant of all counts in connection with [two other] incidents” in August and November 2011 (O'Neil, 66 A.D.3d at 1134, 887 N.Y.S.2d 705 ). Another prosecution witness admitted that she made a false allegation of rape against defendant, and gave conflicting accounts of defendant's whereabouts at the time of the December 25, 2011 incident.
In addition, the testimony concerning the discovery by the victim and her mother's boyfriend of the semen—stained bath towel, the crucial item of evidence against defendant, “ ‘is incredible and unbelievable, that is, impossible of belief because it is ... contrary to experience’ ” (People v.
Garafolo, 44 A.D.2d 86, 88, 353 N.Y.S.2d 500 ; see People v. Wallace, 306 A.D.2d 802, 802–803, 760 N.Y.S.2d 702 ). Moreover, the towel was discovered three days following the incident and, during the interim between the alleged crime and its discovery, the towel was accessible to persons who had an acrimonious relationship with defendant. Those circumstances thoroughly undermined any weight that should otherwise have been accorded to the only physical evidence against defendant (cf. People v. Ortiz, 80 A.D.3d 628, 629–630, 914 N.Y.S.2d 281, lv. denied 16 N.Y.3d 862, 923 N.Y.S.2d 424, 947 N.E.2d 1203 ).
Finally, “[e]ven assuming that the verdict of guilt was not against the weight of the evidence, pursuant to our interest of justice jurisdiction (see, CPL 470.15[3][c] ), [I] would reverse the judgment and dismiss the indictment because the evidence in this case leaves [me] with a very disturbing feeling that guilt has not been satisfactorily established; [that is,] that there is a grave risk that an innocent man has been convicted” (People v. Gioeli, 288 A.D.2d 488, 489, 733 N.Y.S.2d 242 [internal quotation marks omitted]; see generally People v. Carter, 63 N.Y.2d 530, 536, 483 N.Y.S.2d 654, 473 N.E.2d 6 ; People v. Kidd, 76 A.D.2d 665, 668, 431 N.Y.S.2d 542, lv. dismissed 51 N.Y.2d 882, 434 N.Y.S.2d 1029, 414 N.E.2d 714 ).