People v. Casatelli

204 A.D.3d 1092

166 N.Y.S.3d 722

The PEOPLE of the State of New York, Respondent,

v.Franklin CASATELLI, Appellant.

112060

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: February 10, 2022

Decided and Entered: April 7, 2022

Tina Sodhi, Alternate Public Defender, Albany (Steven M. Sharp of counsel), for appellant.

P. David Soares, District Attorney, Albany (Vincent Stark of counsel), for respondent.

Before: Egan Jr., J.P., Clark, Aarons, Reynolds Fitzgerald and McShan, JJ.

MEMORANDUM AND ORDER

Egan Jr., J.P. Appeal from a judgment of the Supreme Court (Breslin, J.), rendered February 5, 2018 in Albany County, upon a verdict convicting defendant of the crimes of rape in the first degree, burglary in the second degree and criminal trespass in the third degree.

Shortly before 3:00 a.m. on the morning of October 23, 2016, a man wandering around Dutch Quad on the campus of the State University of New York at Albany (hereinafter SUNY Albany) entered Ten Broeck Hall through a door opened by one of the dorm's female residents (hereinafter the resident) to retrieve a delivered pizza. The man followed the resident once they were inside and made requests to hang out, which she declined. The resident's roommate let her into their suite and closed the door before the man could follow, after which he knocked and asked if he could come in and charge his cell phone, but eventually left. The man exited the building and, at approximately 3:00 a.m., asked two female students and a male student if they would let him into their nearby dorm, which they refused to do. Within an hour of that encounter, the victim, a female student residing in Stuyvesant Tower, another dorm in Dutch Quad, awoke in her bed to find a man sexually assaulting her. After the man heeded her repeated requests that he leave, the victim contacted law enforcement.

The ensuing investigation identified defendant as the man involved in those incidents. He was charged in a five-count indictment with attempted burglary in the second degree, attempted burglary in the second degree as a sexually motivated felony and criminal trespass in the third degree relating to the Ten Broeck Hall incident, and rape in the first degree and burglary in the second degree as a sexually motivated felony relating to the Stuyvesant Tower incident. Following a jury trial, defendant was acquitted of attempted burglary in the second degree and attempted burglary in the second degree as a sexually motivated felony, and convicted of criminal trespass in the third degree, relating to the Ten Broeck Hall incident. The jury convicted defendant of rape in the first degree and burglary in the second degree as a sexually motivated felony relating to the Stuyvesant Tower incident. Supreme Court sentenced defendant, a second felony offender, to a conditional discharge for his conviction of criminal trespass in the third degree relating to the Ten Broeck Hall incident. Supreme Court further sentenced defendant to a prison term of 22 years to be followed by 25 years of postrelease supervision upon his rape in the first degree conviction and to a consecutive prison term of 15 years to be followed by 10 years of postrelease supervision upon his burglary in the second degree conviction relating to the Stuyvesant Tower incident. Defendant appeals.

To begin, the verdict was supported by legally sufficient evidence and was not against the weight of the evidence in any respect. With regard to the Ten Broeck Hall incident, "[a] person is guilty of criminal trespass in the third degree when he [or she] knowingly enters or remains unlawfully in a building or upon real property ... which is fenced or otherwise enclosed in a manner designed to exclude intruders" ( Penal Law § 140.10[a] ). The trial proof reflected that the general public is excluded from SUNY Albany dorms and that defendant, a nonstudent, did not have a swipe card that would allow him to enter any of them (see e.g. People v. Barnes, 26 N.Y.3d 986, 989, 19 N.Y.S.3d 471, 41 N.E.3d 336 [2015] ). The issue was therefore whether he knowingly entered or remained unlawfully in Ten Broeck Hall, meaning that he was "not licensed or privileged to do so" ( Penal Law § 140.00[5] ). Defendant suggested that he was so privileged because the resident consented to his presence by letting him in and then talking with him (see People v. Graves, 76 N.Y.2d 16, 20, 556 N.Y.S.2d 16, 555 N.E.2d 268 [1990] ). Testimony from the resident and the delivery driver on the scene reflected that defendant was not invited in, however, and that he instead walked through the door that the resident had opened to pick up a pizza. The resident also testified that she only allowed him to do so because she believed that he was a fellow resident. Defendant thereafter followed the resident, who gave him no reason to believe that she wanted him to remain in the building. To the contrary, the resident testified that she made it abundantly clear that they would not be hanging out that evening despite his repeated requests and his unprompted assurance that he did not "want ... to f* *k or anything." The resident's roommate then opened the door to allow the resident into their suite and closed it in defendant's face, and both women ignored his subsequent knocking and requests to come in.¹

The foregoing evidence, when viewed in the light most favorable to the People (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), was legally sufficient to support defendant's conviction of criminal trespass in the third degree (see People v. Bjork, 105 A.D.3d 1258, 1262, 963 N.Y.S.2d 472 [2013], lv denied 21 N.Y.3d 1040, 972 N.Y.S.2d 538, 995 N.E.2d 854 [2013], cert denied 571 U.S. 1213, 134 S.Ct. 1306, 188 L.Ed.2d 328 [2014] ). A different outcome was a reasonable possibility given defendant's conflicting testimony that the resident asked him if he was coming inside and that they then talked without him making any comments about his sexual intent or lack thereof. Nevertheless, after reviewing the evidence in a neutral light and according deference to the jury's assessments of credibility, we find that the portion of the verdict convicting defendant of criminal trespass in the third degree is supported by the weight of the evidence (see People v. Morrison, 127 A.D.3d 1341, 1342–1343, 6 N.Y.S.3d 781 [2015], lv denied 26 N.Y.3d 932, 17 N.Y.S.3d 95, 38 N.E.3d 841 [2015] ; People v. Bjork, 105 A.D.3d at 1262, 963 N.Y.S.2d 472 ).

With regard to the convictions arising out of the Stuyvesant Tower incident, "[a] person is guilty of rape in the first degree when he or she engages in sexual intercourse with another person ... [w]ho is incapable of consent by reason of being physically helpless," such as a person who is asleep and unconscious ( Penal Law § 130.35[2] ; see Penal Law § 130.00[7] ; People v. Regan, 196 A.D.3d 735, 738, 150 N.Y.S.3d 820 [2021] ; People v. Dunham, 172 A.D.3d 1462, 1463, 101 N.Y.S.3d 214 [2019], lv denied 33 N.Y.3d 1068, 105 N.Y.S.3d 33, 129 N.E.3d 353 [2019] ). "A person is guilty of burglary in the second degree when he [or she] knowingly enters or remains unlawfully in a building with intent to commit a crime therein, and when ... [t]he building is a dwelling" ( Penal Law § 140.25[2] ), and that crime constitutes "a sexually motivated felony when he or she commits [it] for the purpose, in whole or substantial part, of his or her own direct sexual gratification" ( Penal Law § 130.91[1] ; see Penal Law § 130.91[2] ).

The victim made clear that she had never seen defendant before and did not consent to either him entering her room or the sexual activity that occurred in it, and the victim, her roommate and an acquaintance gave largely consistent testimony as to what unfolded in the hours leading up to the incident. The victim and her roommate went to an off-campus party, a party also attended by the acquaintance, where they knew almost everyone. The victim drank enough alcohol at the party to become ill, but she, her roommate and the acquaintance all agreed that she remained coherent and was able to move and speak on her own. After leaving the party, the victim, her roommate and the acquaintance took a bus back to the SUNY Albany campus and, around 2:15 a.m., arrived at Stuyvesant Tower. Upon reaching her suite on the fourth floor of the dorm, the victim immediately went into her bedroom to sleep. Her roommate went to bed a bit later and the acquaintance left, closing the doors to the bedroom and the suite behind her. The victim then testified to waking up and finding someone, who she identified at trial as defendant, on top of her and engaging in sexual intercourse with her. She demanded that defendant stop, after which defendant informed her that he had just gotten out of prison, thought she was his ex-girlfriend and asked if he could stay for a while. She declined and repeatedly asked him to leave, which he did after asking her not to call the police. Her roommate woke up around that point, and the victim called 911.

Defendant left Stuyvesant Tower and bummed a cigarette from a group of men standing outside of a nearby dorm, and two of those men testified to what transpired during that interaction. The men noted how defendant told them, among other things, that he was coming from the fourth floor of the tower, where he had performed oral sex on a sleeping woman who looked like his ex-girlfriend, then had vaginal sex with her. The testimony of the men further reflected that defendant kept looking over as police officers arrived and asked if they were going to Stuyvesant Tower. The victim, meanwhile, went to the hospital for a sexual abuse examination, which revealed irritation and trauma that could have a variety of causes but were consistent with her account of a sexual assault.

Defendant testified to a dramatically different version of events from what the other witnesses described, relating how he had met the victim at the...