People v. Borthwick

51 A.D.3d 1211, 857 N.Y.S.2d 358
CourtAppellate Division of the Supreme Court of the State of New York
DecidedMay 15, 2008
StatusPublished
Cited by23 cases

This text of 51 A.D.3d 1211 (People v. Borthwick) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Borthwick, 51 A.D.3d 1211, 857 N.Y.S.2d 358 (N.Y. Ct. App. 2008).

Opinion

Kavanagh, J.

Appeal from a judgment of the County Court of Schoharie County (Bartlett III, J.), rendered October 19, 2005, upon a verdict convicting defendant of the crimes of rape in the first degree (four counts) and incest (two counts).

Defendant was charged by indictment with numerous counts of rape in the first degree, sexual abuse in the first degree, incest and endangering the welfare of a child, all of which involved allegations that on two separate occasions in 1992, he sexually assaulted an eight-year-old girl.1 After a jury trial, defendant was convicted of four counts of rape in the first degree and two counts of incest and was sentenced to an aggregate prison term of 16 2/3 to 50 years. Defendant now appeals from the judgment of conviction.

Defendant raises a number of issues in this appeal, including that his conviction was not supported by the weight of the evidence, he did not receive the effective assistance of counsel and that County Court, by its conduct, forced the jury to abruptly terminate its deliberations and render its verdict. For the reasons that follow, we disagree with each of these contentions and affirm defendant’s conviction.

As for defendant’s claim that his convictions were against the weight of the evidence, the record establishes that three witnesses testified at trial—the victim and two state troopers who interviewed defendant about the victim’s complaint. The victim [1213]*1213testified that in the summer of 1992, when she was eight years old, she was playing in the backyard and was called into the house by defendant. The victim alleged that, once inside, defendant grabbed her by the hair and arm and forced her onto his bed. She attempted to resist but he held her face down on the bed, removed her shorts and underwear and had sexual intercourse with her. The victim testified that she was in “so much pain” and that afterwards there was blood on her legs. She recalled that defendant then took her to the bathroom and put her under the shower to remove the blood from her legs. She also testified that when she complained of the pain and told defendant that she did not feel well, he told her to stop crying and threatened her. Specifically, she recalled defendant telling her that he would hurt or kill her or her mother if she ever told anyone about what had happened.

The victim also testified that later that same summer, she was outside playing with friends when defendant once again called her into the house. As she entered his room, defendant forced her onto his bed and, when she tried to resist, he slapped her. He then unclothed her and had sexual intercourse with her. Once again, defendant threatened the victim and warned her not to disclose to anyone what had occurred. The victim acknowledged that 10 years later, in 2003, she, for the first time, disclosed the allegations of defendant’s assaults in conversations she had with her high school teachers and a guidance counselor. These officials, in turn, notified the State Police, who immediately commenced an investigation.

After a series of interviews with the victim, the investigators attempted to arrange a meeting with defendant. After defendant failed to respond to numerous messages asking him to contact the State Police, the investigators went to his place of work, introduced themselves, told defendant that they needed to talk to him about a complaint that had been made and asked him to accompany them to State Police headquarters. He agreed to go and, upon his arrival, was given Miranda warnings and asked to sign a form indicating that he was aware of and was prepared to waive his constitutional rights. After defendant signed the form and agreed to participate in the interview, he was told, for the first time, who the victim was and that she had made a complaint against him. In response, defendant is alleged to have stated that “if this is about sex, I am going to deny it right now.” Both investigators testified that at that point of the interview they had simply identified the victim and indicated to defendant that she had made a complaint against him; nothing had been stated to defendant that the complaint had sexual [1214]*1214overtones or was of a sexual nature. “Viewing the evidence in a neutral light and weighing the probative force of the conflicting testimony and the relative strength of any conflicting inferences which may be drawn, as well as giving due deference to the jury’s credibility assessments” (People v Pomales, 49 AD3d 962, 963 [2008] [citations omitted]; see People v Jackson, 48 AD3d 891, 892 [2008]), we disagree with defendant’s claim that the verdict convicting him of rape in the first degree and incest was against the weight of the evidence (see People v Bleakley, 69 NY2d 490, 495 [1987]; see also People v Romero, 7 NY3d 633, 643 [2006]).

Defendant contends that the victim’s testimony is so inherently incredible as to be totally unworthy of belief. In support of this contention, he points to the 10-year delay between the alleged sexual assaults and the victim’s initial disclosure of the assaults to officials at her high school. Defendant also recounts inconsistencies in the victim’s recollection of the underlying facts, yet these inconsistencies were fully developed at trial. The jury was well aware of these arguments and, by its verdict, chose to reject them (see People v Bruno, 47 AD3d 1064, 1066 [2008], lv denied 10 NY3d 809 [2008]). The victim’s reluctance, given the context within which these sexual assaults were alleged to have occurred, could well account for her delay in reporting them. The inconsistencies that exist in her recollection of the events in question are certainly understandable given the victim’s age at the time of the incidents and the 13-year gap between when the assaults are alleged to have occurred and when the victim was called to testify about them at trial. Moreover, the inconsistencies in question focus on the victim’s recollection as to the identity of the children who were playing in the backyard when the first incident occurred and her recollection that one of the attacks took place in “early summer” as opposed to June or July. Such inconsistencies, given the attendant circumstances, do not measure up to the type of disclosures which would render a witness’s testimony incredible as a matter of law or establish a basis “upon which to disturb [the jury’s] resolution of these credibility issues” (People v Campbell, 17 AD3d 925, 926 [2005], lv denied 5 NY3d 760 [2005]; see People v Perkins, 21 AD3d 890, 892 [2006], lvs denied 6 NY3d 897 [2006], 7 NY3d 761 [2006]). More importantly, the evidence submitted at trial—the victim’s testimony and the statement attributed to defendant by the State Police—establish a credible basis for the jury’s guilty verdict. In addition, nothing has been submitted by way of credible evidence that would ascribe to the victim a motive to fabricate these allegations against this defendant, and his statement to the police constitutes compelling corroboration [1215]*1215for the victim’s claim that defendant had, in fact, sexually assaulted her. Accordingly, it cannot be said that the convictions are not supported by the weight of the credible evidence offered at trial (see People v Colvin, 37 AD3d 856, 857 [2007], lv denied 8 NY3d 944 [2007]).

Defendant’s complaints regarding counsel’s representation have been reviewed and simply fail to establish that defendant was denied meaningful assistance of trial counsel (see People v Baldi,

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Bluebook (online)
51 A.D.3d 1211, 857 N.Y.S.2d 358, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-borthwick-nyappdiv-2008.