Opinion
No. 55 KA 17-02069
06-03-2022
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. JOSHUA A. MENCEL, DEFENDANT-APPELLANT.
MARK D. FUNK, CONFLICT DEFENDER, ROCHESTER (CAROLYN WALTHER OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (KAYLAN C. PORTER OF COUNSEL), FOR RESPONDENT.
MARK D. FUNK, CONFLICT DEFENDER, ROCHESTER (CAROLYN WALTHER OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (KAYLAN C. PORTER OF COUNSEL), FOR RESPONDENT.
PRESENT: PERADOTTO, J.P., LINDLEY, WINSLOW, AND BANNISTER, JJ.
Appeal from a judgment of the Supreme Court, Monroe County (Alex R. Renzi, J.), rendered May 31, 2017. The judgment convicted defendant upon a jury verdict of kidnapping in the first degree (two counts), coercion in the first degree, unlawful imprisonment in the first degree and assault in the third degree.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of two counts of kidnapping in the first degree (Penal Law § 135.25 [2] [a], [c]), and one count each of coercion in the first degree (§ 135.65 [1]), unlawful imprisonment in the first degree (§ 135.10), and assault in the third degree (§ 120.00 [1]).
We reject defendant's contention that the evidence is legally insufficient to support the conviction of two counts of kidnapping in the first degree. A conviction is supported by legally sufficient evidence "when, viewing the facts in a light most favorable to the People, 'there is a valid line of reasoning and permissible inferences from which a rational jury could have found the elements of the crime proven beyond a reasonable doubt'" (People v Danielson, 9 N.Y.3d 342, 349 [2007], quoting People v Acosta, 80 N.Y.2d 665, 672 [1993]). A defendant is guilty of kidnapping in the first degree when the defendant "abducts another person and when... [the defendant] restrains the person abducted for a period of more than twelve hours with intent to... [i]nflict personal injury upon [the victim]" (Penal Law § 135.25 [2] [a]) or "[t]errorize [the victim]" (§ 135.25 [2] [c]). As relevant here, to" '[a]bduct'" someone "means to restrain a person with intent to prevent his [or her] liberation by... secreting or holding him [or her] in a place where he [or she] is not likely to be found" (§ 135.00 [2] [a]; see People v Gonzalez, 80 N.Y.2d 146, 150 [1992]; People v Vail, 174 A.D.3d 1365, 1367 [4th Dept 2019]). Contrary to defendant's contention, the evidence is legally sufficient to support all of the elements of both charged counts of kidnapping in the first degree (see People v Ehinger, 152 A.D.2d 97, 101 [1st Dept 1989], lv denied 75 N.Y.2d 812 [1990]). Although defendant contends that the People failed to establish that the victim had been abducted because the evidence showed that the victim was being held in a bedroom in her home, we conclude that "[t]he degree of likelihood or unlikelihood of discovery of the victim's hiding place simply presented a factual question for the jury to resolve in light of all the circumstances of the abduction and restraint, and is not susceptible to disposition as a matter of law on this record" (id.). Defendant failed to preserve for our review his remaining challenges to the legal sufficiency of the evidence with respect to the counts of kidnapping in the first degree inasmuch as those specific contentions were not raised in his motion for a trial order of dismissal (see People v Serrano, 196 A.D.3d 1134, 1134 [4th Dept 2021], lv denied 37 N.Y.3d 1061 [2021], reconsideration denied 38 N.Y.3d 930 [2022]; see generally People v Gray, 86 N.Y.2d 10, 19 [1995]). Moreover, viewing the evidence in light of the elements of the crimes of which defendant was convicted as charged to the jury (see Danielson, 9 N.Y.3d at 349), we further conclude that the verdict is not against the weight of the evidence (see generally People v Bleakley, 69 N.Y.2d 490, 495 [1987]).
We further reject defendant's contention that the count charging him with coercion in the first degree (Penal Law § 135.65 [1]) was rendered duplicitous by the testimony at trial. "[T]he rule against duplicitous counts of an indictment 'does not apply to continuing crimes'" (People v Errington, 121 A.D.3d 1553, 1554 [4th Dept 2014], lv denied 25 N.Y.3d 1163 [2015]; see People v Dalton, 27 A.D.3d 779, 781 [3d Dept 2006], lv denied 7 N.Y.3d 754 [2006], reconsideration denied 7 N.Y.3d 811 [2006]). Contrary to defendant's contention, "coercion is a crime that can be committed by a series of acts over a period of time and can be characterized as a continuing offense" (People v Belden, 215 A.D.2d 889, 890 [3d Dept 1995], lv denied 86 N.Y.2d 840 [1995]; see generally People v First Meridian Planning Corp., 86 N.Y.2d 608, 615-616 [1995]). Thus, the charge of coercion in the first degree as a continuing crime was not rendered duplicitous by evidence establishing that defendant instilled fear in the victim over a one-month period by inflicting physical and verbal abuse, as well as threatening to have her arrested or institutionalized if she failed to comply with his commands.
Defendant further contends that he was deprived of a fair trial due to several improper evidentiary rulings. We conclude that Supreme Court did not abuse its discretion in admitting into evidence text messages sent on July 6 and August 25, 2016 (see generally People v Lofton, 256 A.D.2d 1180, 1180 [4th Dept 1998], lv denied 93 N.Y.2d 854 [1999]), inasmuch as the identity of the senders and receivers of the messages was sufficiently authenticated by the content of the text messages (see People v Green, 107 A.D.3d 915, 916 [2d Dept 2013], lv denied 22 N.Y.3d 1088 [2014]; see generally People v Patterson, 93 N.Y.2d 80, 84-85 [1999]). To the extent that the court may have erred in admitting in evidence text messages dated August 2, 2016 on the ground that it is unclear whether defendant was a sender or receiver of those text messages, we conclude that any error is harmless (see generally People v Crimmins, 36 N.Y.2d 230, 241-242 [1975]; Lofton, 256 A.D.2d at 1180-1181).
Further, the court did not err in permitting the People to introduce into evidence letters written between the victim and the codefendants. The letters were introduced, not for the truth of the matters asserted within, but for the purpose of showing the jury the states of mind of defendant and the codefendants (see People v Ricco, 56 N.Y.2d 320, 328 [1982]; see generally People v Arnold, 147 A.D.3d 1327, 1328 [4th Dept 2017], lv denied 29 N.Y.3d 996 [2017]; People v Loria, 190 A.D.2d 1006, 1006 [4th Dept 1993]). In any event, any alleged error in the admission of the letters is harmless (see generally Crimmins, 36 N.Y.2d at 241-242). Indeed, the information contained within those letters is largely cumulative of the victim's testimony and the communications by defendant that were admitted in evidence (see People v Villalona, 145 A.D.3d 625, 626 [1st Dept 2016], lv denied 29 N.Y.3d 953 [2017]; People v Pruitt, 129 A.D.3d 517, 518 [1st Dept 2015], lv denied 26 N.Y.3d 970 [2015]).
Nor did the court abuse its discretion in permitting the People to introduce into evidence the order of protection obtained by one of the codefendants against the victim (see generally People v Barnes, 109 A.D.2d 179, 184 [4th Dept 1985]; People v Ahearn, 88 A.D.2d 691, 692 [3d Dept 1982]). The order of protection was relevant to the issues at trial inasmuch as it supported the People's theory that defendant's motivation for committing the crimes against the victim was a desire to interfere with the victim's custody of her two-year-old daughter (see generally People v Frumusa, 29 N.Y.3d 364, 370 [2017], rearg denied 29 N.Y.3d 1110 [2017]; People v Ayala, 298 A.D.2d 397, 398 [2d Dept 2002], lv denied 99 N.Y.2d 555 [2002]).
We reject defendant's contention that the court erred in permitting a psychiatric assistance officer to provide testimony describing a conversation with the victim under the prompt outcry exception to the hearsay rule." '[P]romptness is a relative concept dependent on the facts'" of the case (People v Rosario, 17 N.Y.3d 501, 512-513 [2011], quoting People v McDaniel, 81 N.Y.2d 10, 17 [1993]). Given the emotional and physical abuse suffered by the victim, we conclude that the victim's statements to the psychiatric assistance officer were made "at the first suitable opportunity" (People v Rath, 192 A.D.3d 1600, 1601 [4th Dept 2021], lv denied 37 N.Y.3d 959 [2021]), and we therefore reject defendant's contention that the outcry was not sufficiently prompt (see People v Shelton, 307 A.D.2d 370, 371 [2d Dept 2003], affd 1 N.Y.3d 614 [2004]; People v Reyes, 143 A.D.3d 414, 414 [1st Dept 2016], lv denied 28 N.Y.3d 1126 [2016]; People v Cridelle, 112 A.D.3d 1141, 1143-1144 [3d Dept 2013]).
Defendant further contends that he was denied a fair trial due to prosecutorial misconduct during summation. With respect to the sole instance of prosecutorial misconduct to which defendant objected with "a specification of the basis for the objection" sufficient to preserve the issue for our review (People v Beggs, 19 A.D.3d 1150, 1151 [4th Dept 2005], lv denied 5 N.Y.3d 803 [2005]), the court sustained the objection and issued a curative instruction. Inasmuch as "[d]efendant did not request further curative instructions or move for a mistrial with respect to th[at] objection[, ]... the court must be deemed to have corrected the error[] to the defendant's satisfaction" (People v Duell, 124 A.D.3d 1225, 1229 [4th Dept 2015], lv denied 26 N.Y.3d 967 [2015] [internal quotation marks omitted]).
Defendant's sentence is not unduly harsh or severe.
Finally, we have reviewed defendant's remaining contentions and conclude that they are either unpreserved or without merit.