People v. Holmes

211 N.Y.S.3d 551

227 A.D.3d 1184

The PEOPLE of the State of New York, Respondent,

v.Robert W. HOLMES III, Appellant

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

Calendar Date: March 28, 2024

Decided and Entered: May 9, 2024

Veronica Reed, Schenectady, for appellant.

William G. Gabor, District Attorney, Wampsville (J. Scott Porter of counsel), for respondent.

Before: Garry, P.J., Egan Jr., Fisher, McShan and Powers, JJ.

MEMORANDUM AND ORDER

Garry, P.J.

Appeal from a judgment of the Supreme Court (Donald F. Cerio Jr., J.), rendered March 16, 2020 in Madison County, convicting defendant following a nonjury trial of the crimes of burglary in the second degree (two counts), rape in the first degree, criminal obstruction of breathing or blood circulation and criminal trespass in the second degree.

In December 2018, defendant repeatedly entered the apartment of his former paramour (hereinafter the victim) and engaged in sexual intercourse with the victim without her consent, causing her injuries, and applied pressure to her throat. Defendant was thereafter charged by indictment with, among other things, three counts of burglary in the second degree (counts 1, 5, 7), one count of rape in the first degree (count 3) and one count of criminal obstruction of breathing or blood circulation (count 6).¹ Following a nonjury trial before Supreme Court (Cerio Jr., J.), defendant was convicted of two counts of burglary in the second degree (counts 1, 5), rape in the first degree (count 3), criminal obstruction of breathing or blood circulation (count 6) and criminal trespass in the second degree (as a lesser included offense under count 7). Defendant was sentenced, as a second felony offender, to 15 years in prison and 10 years of postrelease supervision on his conviction of burglary in the second degree as charged in count 1, 25 years in prison and 25 years of postrelease supervision on his conviction of rape in the first degree (count 3), concurrent to the sentence on count 1, and to 10 years in prison and 10 years of postrelease supervision on his conviction of burglary in the second degree as charged in count 5, consecutive to counts 1 and 3. He was also sentenced to one year each on the convictions of criminal obstruction of breathing and criminal trespass, resulting in an aggregate sentence of 35 years in prison. Defendant appeals.

Defendant contends that the verdict is not supported by legally sufficient evidence and is against the weight of the evidence. Specifically, he argues that there is insufficient proof as to the element of intent relative to burglary in the second degree and, upon the charge of rape in the first degree, insufficient proof as to the timing of the sexual intercourse alleged in the indictment and the element of forcible compulsion. Initially, defendant properly preserved his claim as to forcible compulsion, but failed to preserve his legal sufficiency arguments as to intent and timing (see People v. Tunstall, 149 A.D.3d 1249, 1249, 51 N.Y.S.3d 689 [3d Dept. 2017], lv denied 30 N.Y.3d 1023, 70 N.Y.S.3d 456, 93 N.E.3d 1220 [2017]; People v. Acevedo, 118 A.D.3d 1103, 1104, 987 N.Y.S.2d 660 [3d Dept. 2014], lv denied 26 N.Y.3d 925, 17 N.Y.S.3d 88, 38 N.E.3d 834 [2015]). "In conducting a legal sufficiency analysis, this Court views the evidence in the light most favorable to the People and evaluates whether there is any valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial and as a matter of law satisfy the proof and burden requirements for every element of the crime charged" (People v. Moore, 223 A.D.3d 1085, 1086, 204 N.Y.S.3d 285 [3d Dept. 2024] [internal quotation marks and citations omitted]; see People v. Peasley, 208 A.D.3d 1466, 1467, 174 N.Y.S.3d 497 [3d Dept. 2022], lv denied 39 N.Y.3d 1074, 183 N.Y.S.3d 805, 204 N.E.3d 441 [2023]).

[1, 2] Despite defendant’s failure to preserve all of his legal sufficiency arguments, in addressing his contention that the verdict is against the weight of the evidence, "we necessarily determine whether the People proved each element of the charged crimes beyond a reasonable doubt" (People v. Cason, 203 A.D.3d 1309, 1310, 164 N.Y.S.3d 305 [3d Dept. 2022] [internal quotation marks and citations omitted], lv denied 38 N.Y.3d 1132, 172 N.Y.S.3d 867, 193 N.E.3d 532 [2022]; see People v. Hodgins, 202 A.D.3d 1377, 1378– 1379, 162 N.Y.S.3d 569 [3d Dept. 2022]). "When undertaking a weight of the evidence review, this Court must first determine whether, based on all the credible evidence, a different finding would not have been unreasonable and, if not, then it must weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony to determine if the verdict is supported by the weight of the evidence. When conducting this review, this Court considers the evidence in a neutral light and defers to the [factfinder]’s credibility assessments" (People v. Moore, 223 A.D.3d at 1086–1087, 204 N.Y.S.3d 285 [internal quotation marks, brackets and citations omitted]; see People v. Scott, 219 A.D.3d 1572, 1573, 197 N.Y.S.3d 343 [3d Dept. 2023]; People v. Kilgore, 218 A.D.3d 1054, 1055, 194 N.Y.S.3d 797 [3d Dept. 2023], lv denied 40 N.Y.3d 1081, 202 N.Y.S.3d 765, 225 N.E.3d 884 [2023]).

[3] Pertinent here, "[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 … [t]he building is a dwelling" (Penal Law § 140.25[2]). In this regard, "[a] defendant’s intent to commit a crime may be properly inferred from, among other things, the circumstances of the entry, his or her unexplained presence in the dwelling and his or her actions and statements while on the premises" (People v. Cason, 203 A.D.3d at 1311, 164 N.Y.S.3d 305 [internal quotation marks, brackets and citations omitted]; see People v. Smith, 210 A.D.3d 1297, 1300, 179 N.Y.S.3d 368 [3d Dept. 2022], lv denied 39 N.Y.3d 1080, 184 N.Y.S.3d 295, 204 N.E.3d 1077 [2023]). "A person is guilty of rape in the first degree when he or she engages in sexual intercourse with another person … [b]y forcible compulsion" (Penal Law § 130.35[1]). " ‘Forcible compulsion’ means to compel by either … use of physical force; or … a threat, express or implied, which places a person in fear of immediate death or physical injury to himself, herself or another person" (Penal Law § 130.00[8]).

The evidence and testimony adduced at trial established that defendant and the victim had a tumultuous and sporadic relationship spanning the course of several years. The victim testified that defendant abused alcohol and had been physically and verbally abusive throughout their relationship. Although the victim permitted defendant to live with her on occasion, he was not on her lease or utilities. On October 23, 2018, the victim obtained a temporary order of protection against defendant, effective through April 23, 2019, and defendant was served with that order. In November 2018, the victim asked defendant to collect his belongings from her apartment but permitted him to stay there intermittently thereafter. On November 20, 2018, a permanent two-year order of protection was issued. The victim testified that she presented defendant with a copy of the November order that same day and asked him to leave, but he refused. The following day, an officer responded to the victim’s home regarding a possible order of protection violation. The officer testified that, at that time, the victim indicated that she did not want defendant removed from the apartment. Nevertheless, although the November order of protection had not yet been served, the officer expressly advised defendant of that order.

According to the victim, by December 2018, defendant alternated between staying at the victim’s apartment, a tent that she had given him, and another woman’s home. On December 18, 2018, the victim repeatedly let defendant into her home.

She testified that she did so after he had banged on her door for 15 to 20 minutes and she had become concerned about her neighbors. Throughout that evening, defendant, who was intoxicated, verbally and physically abused her and threatened to choke and kill her. According to the victim, in the early morning hours defendant put a pillow over her face and pushed her against a wall, making aggressive sexual advances upon her. When she told him that she was "not in the mood," he brought her into the living room and began removing her clothing. She then told him that he was hurting her and would undress herself. Defendant thereafter had sexual intercourse with her, biting her in several places. The victim testified that she had intercourse with defendant because she was afraid and that she had told him that she was "scared." Although defendant later left the apartment, the victim testified that she let him return, out of fear. Upon returning, defendant forcefully grabbed her throat. After defendant left again, the victim called her contact at a victims’ advocacy group because she "feared for [her] life," but hung up when defendant returned. Defendant’s verbal and physical abuse continued and, when the victim was later able to briefly leave the apartment, she again contacted the victims’ advocate for assistance in removing defendant from her home. The victim explained that she did not contact police because she did not believe that they would help. The victim’s supporting deposition was largely consistent with her trial testimony.

An officer who responded to a trespass complaint at the victim’s apartment on December 19, 2018, testified that he arrested defendant and removed him from the victim’s apartment after a file search revealed the November order of protection. According to the officer, defendant admitted that he was aware of the order but...