Opinion
2014-10-23
The PEOPLE of the State of New York, Respondent, v. William A. LANCASTER, Appellant.
Rebecca L. Fox, Plattsburgh, for appellant. Andrew J. Wylie, District Attorney, Plattsburgh (Jaime A. Douthat of counsel), for respondent.
Rebecca L. Fox, Plattsburgh, for appellant. Andrew J. Wylie, District Attorney, Plattsburgh (Jaime A. Douthat of counsel), for respondent.
Before: PETERS, P.J., STEIN, GARRY, LYNCH and DEVINE, JJ.
LYNCH, J.
Appeal from a judgment of the Supreme Court (Lawliss, J.), rendered September 17, 2012 in Clinton County, upon a verdict convicting defendant of the crimes of criminal sexual act in the first degree, attempted criminal sexual act in the first degree and endangering the welfare of a child (two counts).
Defendant, who was then 53 years old, was charged in a 17–count indictment arising out of allegations that he forced his 13–year–old victim to engage in sexual contact and sexual intercourse on multiple occasions during a period beginning sometime in July or August 2011 and continuing through November 10, 2011. As relevant to the issues presented, five counts involved sexual activity occurring on November 10, 2011. Defendant was arrested after a police detective arranged a recorded telephone call between the victim and defendant, who was well-known by both the victim and her mother. During the call, defendant acknowledged that there had been sexual activity between them. After a jury trial, defendant was sentenced to concurrent prison terms of 18 years with 10 years of postrelease supervision on his conviction of criminal sexual act in the first degree, 15 years with 10 years of postrelease supervision on his conviction of attempted criminal sexual act in the first degree, and one year each on his two convictions of endangering the welfare of the child.
On this appeal, defendant claims that the People failed to present legally sufficient proof of criminal sexual act in the first degree or attempted criminal sexual act in the first degree and that the guilty verdicts therefor were against the weight of the evidence. Although he concedes that his claim of legal insufficiency was not preserved for this Court's review ( see People v. Hawkins, 11 N.Y.3d 484, 491–492, 872 N.Y.S.2d 395, 900 N.E.2d 946 [2008] ), “our review of the weight of the evidence necessarily includes our verification that the elements of the crime were established” (People v. Wingo, 103 A.D.3d 1036, 1036, 962 N.Y.S.2d 422, lv. denied21 N.Y.3d 1021, 971 N.Y.S.2d 503, 994 N.E.2d 399 [2013] ). As relevant here, a defendant is guilty of criminal sexual act in the first degree “when he or she engages in oral sexual conduct or anal sexual conduct with another person ... [b]y forcible compulsion” (Penal Law § 130.50[1] ). A defendant is guilty of attempted criminal sexual act in the first degree when he or she intentionally engages in conduct which “tends to effect” such criminal sexual act (Penal Law § 110.00). Defendant claims that because the jury acquitted him of the count of sexual abuse in the first degree alleging oral sexual conduct by forcible compulsion and rape in the first degree alleging sexual intercourse by forcible compulsion for the event occurring on November 10, 2011, the weight of the evidence fails to support the jury's findings that defendant engaged in anal sexual conduct by forcible compulsion and attempted to engage in oral sexual conduct by forcible compulsion. We disagree.
The element of “forcible compulsion” is necessary and common to both the crimes of rape in the first degree and criminal sexual act in the first degree ( seePenal Law §§ 130.35[1]; 130.50[1] ). Accordingly, defendant was charged with “compel[ling] [the acts] by either ... use of physical force; or ... a threat, express or implied, which places a person in fear of ... physical injury to ... herself or another person” (Penal Law § 130.00[8] [a], [b]; see People v. Nailor, 268 A.D.2d 695, 697, 701 N.Y.S.2d 476 [2000] ). “The element of forcible compulsion is examined through the state of mind produced in the victim, and relevant factors include the age of the victim, the relative size and strength of the defendant and victim, and the nature of the defendant's relationship to the victim” (People v. Scanlon, 52 A.D.3d 1035, 1038–1039, 861 N.Y.S.2d 426 [2008] [internal quotation marks, brackets and citations omitted], lv. denied11 N.Y.3d 741, 864 N.Y.S.2d 399, 894 N.E.2d 663 [2008] ).
In performing a weight of the evidence review, our obligation is to review the evidence “in a neutral light, with deference to the jury's credibility assessments, and, if based on all the credible evidence a different finding would not have been unreasonable, we must, like the trier of fact below, weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony” (People v. Henehan, 111 A.D.3d 1151, 1153, 976 N.Y.S.2d 269 [2013] [internal quotation marks, brackets and citations omitted] ). Upon review of the evidence in this case, we find that, although a different finding would not have been unreasonable, there was ample support for the jury's verdict. The victim testified with regard to her family's relationship with the older and physically larger defendant. She was able to describe the event involving anal sexual contact and oral sexual contact with great detail and to explain that defendant held her legs, used his body weight to restrain her and prevent her from moving, and that he proceeded despite her cries of protest. In our view, the victim's testimony establishes the element of forcible compulsion ( see People v. Wright, 88 A.D.3d 1154, 1157, 931 N.Y.S.2d 727 [2011], lv. denied18 N.Y.3d 863, 938 N.Y.S.2d 871, 962 N.E.2d 296 [2011]; People v. Val, 38 A.D.3d 928, 929, 830 N.Y.S.2d 391 [2007], lv. denied9 N.Y.3d 852, 840 N.Y.S.2d 779, 872 N.E.2d 892 [2007]; People v. Plaisted, 2 A.D.3d 906, 907, 767 N.Y.S.2d 518 [2003], lv. denied 2 N.Y.3d 744, 778 N.Y.S.2d 470, 810 N.E.2d 923 [2004] ). This is particularly so given the ages of defendant and the victim, the victim's expressed fear from prior incidents and the effect of defendant's “fatherly status in the household” (People v. Nailor, 268 A.D.2d at 698, 701 N.Y.S.2d 476).
We also reject defendant's claim that the audiotape of his conversation with the victim should not have been allowed into evidence. “Admissibility of tape-recorded conversation requires proof of the accuracy or authenticity of the tape by clear and convincing evidence establishing that the offered evidence is genuine and that there has been no tampering with it” (People v. Ely, 68 N.Y.2d 520, 527, 510 N.Y.S.2d 532, 503 N.E.2d 88 [1986] [internal quotation marks and citation omitted] ). “The foundational requirements for admission of a recorded conversation include proof of both the authenticity of the tape and the identity of the speakers on the tape” (People v. Vanhoesen, 31 A.D.3d 805, 807, 819 N.Y.S.2d 319 [2006] [citations omitted] ). Proper foundation may be provided through, as relevant here, testimony by “a witness to the conversation or to its recording” (People v. Ely, 68 N.Y.2d at 527, 510 N.Y.S.2d 532, 503 N.E.2d 88). Further, “a speaker's identity may be proven through circumstances surrounding the recorded conversation, which must include sufficient indica of reliability” (People v. Vanhoesen, 31 A.D.3d at 808, 819 N.Y.S.2d 319), “such as the substance of the conversation confirming the identity of the party” (People v. Shapiro, 227 A.D.2d 506, 507, 643 N.Y.S.2d 143 [1996], lv. denied88 N.Y.2d 1024, 651 N.Y.S.2d 23, 673 N.E.2d 1250 [1996] ). Here, Detective Steven Dube testified that he supervised and recorded the controlled telephone call and identified both defendant's and the victim's voices on the recording. He further testified that he listened to the audiotape prior to his testimony and that it was not different from the conversation he recorded on November 14, 2011. Under these circumstances, Supreme Court acted within its discretion when it admitted the audiotape into evidence.
We are unpersuaded that defendant's sentence was harsh or excessive. Where, as here, the sentence falls within the permissible statutory range, “we will not disturb it unless we find that the sentencing court abused its discretion or extraordinary circumstances exist warranting a modification” (People v. Cruz, 53 A.D.3d 986, 986, 863 N.Y.S.2d 274 [2008] ). Given the nature of defendant's crimes and that the aggregate sentence is less than the maximum allowable, we discern nothing from the record that indicates that the court abused its discretion nor are there any extraordinary circumstances warranting a modification of the sentence imposed ( see People v. Davis, 114 A.D.3d 1003, 1004, 979 N.Y.S.2d 878 [2014], lv. denied23 N.Y.3d 962, 988 N.Y.S.2d 569, 11 N.E.3d 719 [2014]; People v. Bjork, 105 A.D.3d 1258, 1264, 963 N.Y.S.2d 472 [2010], lv. denied 21 N.Y.3d 1040, 972 N.Y.S.2d 538, 995 N.E.2d 854 [2013]; People v. Maggio, 70 A.D.3d 1258, 1261, 896 N.Y.S.2d 220 [2010], lv. denied14 N.Y.3d 889, 903 N.Y.S.2d 778, 929 N.E.2d 1013 [2010] ).
At sentencing, Supreme Court also issued an order of protection for the victim's benefit. Our review of the record confirms that Supreme Court did not err when it calculated the duration of the order to be 28 years from the date of sentencing. Where, as here, a defendant is convicted of a felony, the duration of an order of protection “shall not exceed the greater of: (i) eight years from the date of such sentencing, or (ii) eight years from the date of the expiration of the maximum term of an indeterminate or the term of a determinate sentence of imprisonment actually imposed” (CPL 530.12[5] [A] ). For purposes of calculating the duration of an order of protection, defendant's sentence here included the mandatory period of postrelease supervision ( see People v. Crowley, 34 A.D.3d 866, 868, 823 N.Y.S.2d 561 [2006], lv. denied7 N.Y.3d 924, 827 N.Y.S.2d 693, 860 N.E.2d 995 [2006] ). Accordingly, with the postrelease supervision term, the sentence was 28 years and, inasmuch as defendant was not in custody for more than eight years prior to sentencing, the order of protection does not violate CPL 530.12(5)(A).
ORDERED that the judgment is affirmed. PETERS, P.J., STEIN, GARRY and DEVINE, JJ., concur.