Opinion
No. 1032 KA 22-00966
02-02-2024
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. SHAMIK KING, DEFENDANT-APPELLANT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (THOMAS M. LEITH OF COUNSEL), FOR DEFENDANT-APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (ELISABETH DANNAN OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (THOMAS M. LEITH OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (ELISABETH DANNAN OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., LINDLEY, MONTOUR, OGDEN, AND DELCONTE, JJ.
Appeal from a judgment of the Onondaga County Court (Stephen J. Dougherty, J.), rendered November 26, 2019. The judgment convicted defendant after a jury trial of rape in the first degree, criminal sexual act in the first degree, burglary in the first degree and assault in the second degree.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him following a jury trial of rape in the first degree (Penal Law § 130.35 [1]), criminal sexual act in the first degree (§ 130.50 [1]), burglary in the first degree (§ 140.30 [2]), and assault in the second degree (§ 120.05 [12]). According to the evidence at trial, which is generally undisputed on appeal, defendant unlawfully entered the apartment of the 74-year-old victim, raped her, and struck the victim repeatedly in her face with his fist. Surveillance videos from the victim's apartment complex show defendant on the victim's floor minutes before the attack took place and then leaving the building approximately 10 minutes later. Forensic evidence at trial linked sperm cells recovered from the victim during a vulvar swab to defendant's DNA profile, and linked blood recovered from the clothing that defendant was wearing when he was arrested to the victim's DNA profile.
On appeal, defendant contends that the evidence is legally insufficient and the verdict is against the weight of the evidence with respect to the count charging him with criminal sexual act in the first degree. According to defendant, the evidence is legally insufficient to establish that his penis came into contact with the victim's anus. We reject that contention. After the victim described on direct examination how defendant entered her "[v]aginally" with his penis, the prosecutor asked what happened next, to which the victim responded, "He flipped me and went to enter me rectally." When asked whether she felt defendant "trying to enter [her] anally," the victim testified, "I felt him try, yes." It is true, as defendant points out, that the victim did not specifically testify that it was defendant's penis that she felt come into contact with her anus, as opposed to some other part of his body, such as his fingers. Nevertheless, viewing the evidence in the light most favorable to the People, as we must when reviewing a contention regarding the legal sufficiency of trial evidence (see People v Contes, 60 N.Y.2d 620, 621 [1983]), we conclude that there is a "valid line of reasoning and permissible inferences" from which a rational jury could have found that it was defendant's penis that came into contact with the victim's anus (People v Bleakley, 69 N.Y.2d 490, 495 [1987]).
Further, viewing the evidence in light of the elements of criminal sexual act in the first degree as charged to the jury (see People v Danielson, 9 N.Y.3d 342, 349 [2007]), we conclude that the verdict with respect to that count is not against the weight of the evidence (see generally Bleakley, 69 N.Y.2d at 495). Although a different verdict on that count would not have been unreasonable, it cannot be said that the jury "failed to give the evidence the weight it should be accorded" (id.; see generally People v Kalinowski, 118 A.D.3d 1434, 1436 [4th Dept 2014], lv denied 23 N.Y.3d 1064 [2014]).
Defendant contends that he was denied a fair trial because the prosecutor engaged in misconduct during summation by, among other things, mischaracterizing evidence, improperly arousing sympathy for the victim, and improperly acting as an unsworn witness. By failing to object to any of the alleged instances of misconduct, however, defendant failed to preserve that contention for our review (see People v Watts, 218 A.D.3d 1171, 1174 [4th Dept 2023], lv denied 40 N.Y.3d 1013 [2023]; People v Pendergraph, 150 A.D.3d 1703, 1703 [4th Dept 2017], lv denied 29 N.Y.3d 1132 [2017]). In any event, we conclude that any "improper remarks by the prosecutor were not so pervasive or egregious as to deny defendant a fair trial" (People v Hanes, 218 A.D.3d 1175, 1178 [4th Dept 2023]; see People v Cardoza, 218 A.D.3d 1291, 1295 [4th Dept 2023], lv denied 40 N.Y.3d 996 [2023]).
We reject defendant's contention that County Court erred by imposing consecutive sentences for the crimes of rape in the first degree and criminal sexual act in the first degree. We conclude that the consecutive sentences are lawful because defendant committed "separate and distinct acts," by placing his penis in the victim's vagina and then making contact between his penis and the victim's anus (People v Laureano, 87 N.Y.2d 640, 643 [1996]; see People v Boyd, 175 A.D.3d 1030, 1031 [4th Dept 2019], lv denied 34 N.Y.3d 1015 [2019])," 'notwithstanding that they occurred in the course of a continuous incident'" (People v Lucie, 49 A.D.3d 1253, 1255 [4th Dept 2008], lv denied 10 N.Y.3d 936 [2008]). Although the rape and criminal sexual act "took place over a continuous course of activity, they constituted separate and distinct acts, and neither crime was a material element of the other" (People v Burton, 83 A.D.3d 1562, 1563 [4th Dept 2011], lv denied 17 N.Y.3d 805 [2011] [internal quotation marks omitted]; see People v Curtis, 195 A.D.2d 968, 969 [4th Dept 1993], lv denied 82 N.Y.2d 752 [1993]).
We reject defendant's contention that the sentence is unduly harsh and severe.
We have reviewed defendant's remaining contention and conclude that it does not warrant reversal or modification of the judgment.
Finally, we note that the uniform sentence and commitment sheet incorrectly recites that, under count 3 of the indictment, defendant was convicted of burglary in the first degree under Penal Law § 140.20 (2), and it must be amended to reflect that he was convicted under Penal Law § 140.30 (2) (see People v Morrow, 167 A.D.3d 1516, 1518 [4th Dept 2018], lv denied 33 N.Y.3d 951 [2019]).