People v. Graham

200 A.D.3d 705

159 N.Y.S.3d 87

The PEOPLE, etc., respondent,

v.Cally GRAHAM, appellant.

2019–06050

Ind. No. 18–00426

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

Argued—October 18, 2021

December 1, 2021

Alex Smith, Middletown, NY, for appellant, and appellant pro se.

David M. Hoovler, District Attorney, Goshen, NY (Robert H. Middlemiss and Andrew R. Kass of counsel), for respondent.

MARK C. DILLON, J.P., SYLVIA O. HINDS–RADIX, LINDA CHRISTOPHER, JOSEPH A. ZAYAS, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Orange County (Craig Stephen Brown, J.), rendered April 30, 2019, convicting him of rape in the first degree and criminal sexual act in the first degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is reversed, on the law, the indictment is dismissed, and the matter is remitted to the County Court, Orange County, for further proceedings consistent with CPL 160.50.

The complainant testified at trial that in November 2017, when she was 15 years old, she ran away from a residential juvenile facility and traveled to Newburgh. There, she met a woman named Franiqua Patterson (hereinafter Franiqua). The complainant testified that she needed to make money; otherwise, she would have "to go back to placement." Franiqua encouraged the complainant to engage in prostitution and, to this end, set up a profile for her on the Backpage website. Soon thereafter, Franiqua began arranging "dates" that would occur at the apartment where the complainant was staying with Franiqua, as well as at hotels in the area. It was not unusual for the complainant to have as many as 20 such "dates" in a single day; sometimes, she would have even more. Although the complainant and Franiqua agreed initially to share equally in the money the complainant made from these prostitution activities, ultimately, Franiqua kept all of it.

The complainant further testified that at some point—she could not specify when—Franiqua began behaving abusively towards her; she would curse at her, "[c]all [her] names," and hit her. On one occasion, Franiqua "busted [the complainant's] lip." Some of these disputes concerned money; others occurred because Franiqua "didn't like the things [the complainant] did."

The complainant testified that during the early morning hours of December 12, 2017, she went to an apartment where Franiqua's sister, Franeisha Patterson (hereinafter Franeisha), lived. Franeisha, Franiqua, Franiqua's boyfriend, Daniel Wapples, and Franeisha's boyfriend, the defendant, were in the living room. The complainant had never spoken with the defendant before.

Franeisha suggested to the complainant that she have sex with the defendant. At first, the complainant thought Franeisha was joking and "[l]aughed it off." Franeisha, however, repeated the suggestion several more times. Franiqua then "joined in," telling the complainant that she should also have sex with Wapples. Franiqua kept "pushing it." All of this made the complainant "[u]ncomfortable," and she told "[e]veryone" she did not want to do what was being proposed. Franiqua, however, continued pressuring the complainant, and, eventually, she acquiesced, removed her clothes, and began having sex with both men—sexual intercourse with Wapples, and oral sex with the defendant. Franiqua recorded part of what occurred on her phone. While this was happening, the complainant continued to feel uncomfortable.

When she testified at the defendant's trial, the complainant was asked if she believed she had a choice whether to have sex with the two men. In response, she said she did not think she did because "they were just pushing it" and there was "nothing [she] could do." The complainant acknowledged, however, that no one had threatened to hurt her and no one did, in fact, hurt her. She acknowledged, as well, that part of what made her uncomfortable was "[t]he whole situation," including the number of people that were present.

The defendant, Wapples, Franeisha, and Franiqua were charged, both as principals and under an acting-in-concert theory, with rape in the first degree, criminal sexual act in the first degree, use of a child in a sexual performance, and use of a child in a sexual performance as a sexually motivated felony. The rape in the first degree and criminal sexual act in the first degree charges were predicated on a forcible compulsion theory. In addition, Franiqua was charged—alone—with a number of sex trafficking and promoting prostitution offenses.

The defendant was tried jointly with Franeisha. He was convicted of rape in the first degree and criminal sexual act in the first degree. He was acquitted of use of a child in a sexual performance and, as a result of that acquittal, the jury did not consider the sexually motivated felony count. The defendant appeals, arguing, among other things, that there was legally insufficient evidence of forcible compulsion. We agree.

A court reviewing legal sufficiency of the trial evidence must determine "whether any valid line of reasoning and permissible inferences could lead a rational person to the conclusion reached by the fact finder on the basis of the evidence at trial, viewed in the light most favorable to the People" ( People v. Williams, 84 N.Y.2d 925, 926, 620 N.Y.S.2d 811, 644 N.E.2d 1367 ).

Rape in the first degree, in violation of Penal Law § 130.35(1), and criminal sexual act in the first degree, in violation of Penal Law § 130.50(1), both require a finding of forcible compulsion. Forcible compulsion can be established in two ways: the use of physical force, or by "a threat, express or implied, which places a person in fear of immediate death or physical injury" ( Penal Law § 130.00[8][b] ) to herself or himself, or in fear that she or he will "immediately be kidnapped" (id. ). Although the statutes defining sex offenses that include forcible compulsion as an element "are silent on the subject, intent is implicitly an element of these crimes. The intent required is the intent to perform the prohibited act—i.e., the intent to forcibly compel another to engage in intercourse or sodomy" ( People v. Williams, 81 N.Y.2d 303, 316–317, 598 N.Y.S.2d 167, 614 N.E.2d 730 [citation omitted]).

There was no evidence in this case that either the defendant or Wapples used actual physical force to compel the complainant to engage in sexual intercourse or oral sexual conduct; rather, their physical contact with the complainant was incidental to the sexual acts that they engaged in with her. The complainant also testified that she was not explicitly threatened by any of the perpetrators. And, notably, she never said that the defendant or Wapples played a role in the verbal cajoling by Franiqua and Franeisha that precipitated the sexual conduct. Thus, this case turned on whether there was sufficient evidence of an implied threat. There were, however, a number of problems with that theory generally, and specifically as it relates to this defendant. Viewing the evidence in the light most favorable to the People, we conclude that there was not sufficient evidence of an implied threat here.

To begin, although the complainant testified that, at some point during the several-month period that she stayed with Franiqua, Franiqua began to verbally and physically abuse her, she was unable to provide any sort of timeframe—no matter how approximate—for when this conduct began. Consequently, there was no evidence that Franiqua physically or verbally abused the complainant prior to December 12, 2017, which significantly undermined a finding a forcible compulsion by an implied threat on that date (cf. People v. Peraza, 288 A.D.2d 689, 691, 733 N.Y.S.2d 510 ["the victim's testimony, coupled with evidence of defendant's forcible compulsion upon her prior to the date in question, enabled a rational fact finder to conclude that she was subjected to such compulsion on this date as well"]).

In any event, even assuming that the complainant's testimony regarding her relationship with Franiqua, coupled with Franiqua's verbal pressuring of the complainant to have sex with the defendant and Wapples, established a "valid line of reasoning and permissible inferences" ( People v. Williams, 84 N.Y.2d at 926, 620 N.Y.S.2d 811, 644 N.E.2d 1367 ) from which the jury reasonably could have concluded that Franiqua possessed...