People v. Newkirk

75 A.D.3d 853, 906 N.Y.S.2d 133
CourtAppellate Division of the Supreme Court of the State of New York
DecidedJuly 15, 2010
StatusPublished
Cited by50 cases

This text of 75 A.D.3d 853 (People v. Newkirk) 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. Newkirk, 75 A.D.3d 853, 906 N.Y.S.2d 133 (N.Y. Ct. App. 2010).

Opinion

Egan Jr., J.

Appeals (1) from an order of the Supreme Court (Lamont, J.), rendered April 20, 2006 in Albany County, which partially granted defendant’s motion for a trial order of dismissal, and (2) from a judgment of said court, rendered April 20, 2006 in Albany County, upon a verdict convicting defendant of the crime of sexual abuse in the first degree (three counts).

In a six-count indictment, defendant was charged with rape in the first degree (three counts) and sexual abuse in the first degree (three counts). The indictment was based upon allegations that on May 2, 4 and 6, 2005, defendant raped the victim (born in 1987), his stepdaughter, and sexually abused her by rubbing his penis between her legs while using forcible compulsion. A jury convicted defendant on all six counts. Prior to sentencing, Supreme Court granted defendant’s motion for a trial order of dismissal as to the three counts of rape in the first degree, concluding that the People’s evidence was not legally sufficient to establish penetration (see CPL 290.10 [1]). Supreme Court thereafter sentenced defendant to three consecutive terms of imprisonment of 3V2 years for the three sexual abuse in the first degree convictions, resulting in an aggregate sentence of IOV2 years. Defendant now appeals from the judgment of conviction and the People appeal from the order dismissing the three rape in the first degree counts.

[855]*855Defendant argues that the evidence was legally insufficient to support his convictions for sexual abuse in the first degree, claiming that there was no evidence that he exerted physical force against the victim or implicitly or expressly threatened her. He further contends that the convictions were against the weight of the evidence. Initially, we note that defendant’s motion to dismiss, made both at the close of the People’s case and at the close of all the evidence, specifically addressed defendant’s contention that the evidence was legally insufficient with regard to the rape charges. His challenge to the legal sufficiency of the sexual abuse in the first degree charges, however, was limited to a general motion to dismiss, and he did not specifically advance the grounds upon which he now relies on appeal. Accordingly, defendant failed to preserve the legal sufficiency issue he now raises on appeal (see People v Finger, 95 NY2d 894, 895 [2000]; People v Nesbitt, 69 AD3d 1109, 1110-1111 [2010], lv denied 14 NY3d 843 [2010]). Nevertheless, “we necessarily review the evidence adduced as to each of the elements of the crimes in the context of our review of defendant’s challenge regarding, the weight of the evidence” (People v Caston, 60 AD3d 1147, 1148-1149 [2009]) for which there is no preservation requirement (see People v Danielson, 9 NY3d 342, 348 [2007]).

Insomuch as we find here that it would have been reasonable for the factfinder to reach a different conclusion, “[we] must, like the trier of fact below, weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony” (People v Romero, 7 NY3d 633, 643 [2006] [internal quotation marks and citations omitted]; see People v Clark, 51 AD3d 1050, 1051-1052 [2008], lv denied 10 NY3d 957 [2008]). Moreover, we must evaluate the evidence from a neutral prospective while extending appropriate deference to the factfinder’s credibility (see People v Bleakley, 69 NY2d 490, 495 [1987]; People v Barringer, 54 AD3d 442, 443 [2008], lv denied 11 NY3d 830 [2008]).

Defendant was convicted of having subjected the victim to sexual contact by forcible compulsion (see Penal Law § 130.65 [1]). Sexual contact is defined as “any touching of the sexual or other intimate parts of a person ... for the purpose of gratifying sexual desire of either party” (Penal Law § 130.00 [3]). As relevant here, forcible compulsion is defined as compelling “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]). Here, the victim testified that on three separate occasions in May 2005, defendant picked the lock on her [856]*856bedroom door, climbed on top of her and, while holding her hands, removed her pajama pants and underwear and rubbed his penis along the outside of her vagina until he ejaculated. The victim testified that she was unable to get away due to defendant lying on top of her and holding her hands. Further, semen samples found on the victim’s sheets and on one pair of her underwear were linked, through DNA testing, to defendant. Upon our independent review of the record, and according the jury due deference in its resolution of credibility issues, we conclude that the verdict was supported by the weight of the evidence (see People v Texidor, 71 AD3d 1190, 1193 [2010]; People v Pomoles, 49 AD3d 962, 963 [2008], lv denied 10 NY3d 938 [2008]).

Defendant also contends that Supreme Court erred in denying his motion for a mistrial. Defendant argues that the victim’s testimony, as well as remarks by the People during summation, referenced prior sexual abuse of the victim by defendant and therefore violated Supreme Court’s pretrial Molineux ruling that the prejudicial effect of such evidence far outweighed any probative value. At trial, when asked why she did not scream during the course of the alleged incidents, the victim testified, “Because it was something that always happened.” The People then asked why she had not told her mother and the victim responded, “Because it’s been going on.” At this point defendant objected and immediately moved for a mistrial. Supreme Court reserved decision on the motion for a mistrial, but granted defendant’s motion to strike both answers. Thereafter, during summation, the People asked the jury to consider “the dynamics of [the victim’s] family” and questioned why the victim’s bedroom door had been locked, stating that “[t]hese things don’t happen in a vacuum” and “this is not something that just out of the blue occurs.” Following the People’s summation, defendant again moved for a mistrial on the ground that the People unduly alluded to prior sexual abuse of the victim. The court thereafter denied the motions for a mistrial.

It is well settled that “the decision to grant or deny a motion for a mistrial is within the trial court’s discretion and its decision will not be disturbed unless it amounts to an abuse of discretion” (People v Benway, 217 AD2d 884, 885 [1995]; accord People v Miller, 239 AD2d 787, 787 [1997], affd 91 NY2d 372 [1998]). Here, despite the fact that the two responses by the victim were improper, viewing the comments in light of the entire testimony and considering the overwhelming evidence of defendant’s guilt, we conclude that the impropriety was not so egregious as to deny defendant a fair trial (see People v Cun[857]*857ningham, 222 AD2d 727, 730 [1995], lv denied 87 NY2d 1018 [1996]). Additionally, although defendant declined Supreme Court’s offer of a prompt curative instruction, the court struck the responses and later instructed the jury to disregard all stricken testimony, alleviating any prejudice to defendant (see People v Young, 48 NY2d 995, 996 [1980]; People v Johnson, 67 AD3d 560 [2009], lv denied 14 NY3d 802 [2010]).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

People v. Newkirk
2025 NY Slip Op 05131 (Appellate Division of the Supreme Court of New York, 2025)
O'Donnell v. Sahajahan
2024 NY Slip Op 33652(U) (New York Supreme Court, Kings County, 2024)
People v. McCarty
201 N.Y.S.3d 524 (Appellate Division of the Supreme Court of New York, 2023)
People v. Hajratalli
2021 NY Slip Op 07036 (Appellate Division of the Supreme Court of New York, 2021)
People v. Dawson
2021 NY Slip Op 03632 (Appellate Division of the Supreme Court of New York, 2021)
People v. Conway
2020 NY Slip Op 182 (Appellate Division of the Supreme Court of New York, 2020)
People v. Silver
2019 NY Slip Op 328 (Appellate Division of the Supreme Court of New York, 2019)
People v. Hackett
2018 NY Slip Op 8384 (Appellate Division of the Supreme Court of New York, 2018)
People v. Hahn
2018 NY Slip Op 1361 (Appellate Division of the Supreme Court of New York, 2018)
People v. Glass
2017 NY Slip Op 3809 (Appellate Division of the Supreme Court of New York, 2017)
People v. Iovino
149 A.D.3d 1350 (Appellate Division of the Supreme Court of New York, 2017)
People v. Mould
143 A.D.3d 1186 (Appellate Division of the Supreme Court of New York, 2016)
People v. Franqueira
143 A.D.3d 1164 (Appellate Division of the Supreme Court of New York, 2016)
People v. Ackerman
141 A.D.3d 948 (Appellate Division of the Supreme Court of New York, 2016)
People v. Christian
139 A.D.3d 870 (Appellate Division of the Supreme Court of New York, 2016)
People v. Scaringe
137 A.D.3d 1409 (Appellate Division of the Supreme Court of New York, 2016)
People v. Wlasiuk
136 A.D.3d 1101 (Appellate Division of the Supreme Court of New York, 2016)
Newkirk v. Capra
615 F. App'x 712 (Second Circuit, 2015)
People v. Singh
128 A.D.3d 860 (Appellate Division of the Supreme Court of New York, 2015)
People v. Olsen
124 A.D.3d 1084 (Appellate Division of the Supreme Court of New York, 2015)

Cite This Page — Counsel Stack

Bluebook (online)
75 A.D.3d 853, 906 N.Y.S.2d 133, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-newkirk-nyappdiv-2010.