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People v. Rosario

Supreme Court of New York, Third Department

January 4, 2018

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,
v.
JORGE ROSARIO, Appellant.

          Calendar Date: November 13, 2017

          Lucas G. Mihuta, Albany, for appellant.

          Craig P. Carriero, District Attorney, Malone (Jennifer M. Hollis of counsel), for respondent.

          Before: McCarthy, J.P., Egan Jr., Lynch, Devine and Pritzker, JJ.

          MEMORANDUM AND ORDER

          MCCARTHY, J.P.

         Appeal from a judgment of the County Court of Franklin County (Main Jr., J.), rendered January 26, 2015, upon a verdict convicting defendant of the crimes of unlawful imprisonment in the first degree, criminal contempt in the second degree and criminal obstruction of breathing.

         Defendant and the victim began living together in 2010 and broke up in approximately April 2013. The victim obtained an order of protection against defendant on July 3, 2013. The victim alleged that, on the night of July 12, 2013, defendant entered her residence and kept her there overnight by brandishing a gun, during which time he assaulted her. As a result, defendant was arrested. On July 14, 2013, defendant called her from jail, again violating the order of protection. Defendant was charged in an indictment with (1) burglary in the first degree, reckless endangerment in the first degree, unlawful imprisonment in the first degree, criminal contempt in the first degree, rape in the first degree, criminal sexual act in the first degree and menacing in the second degree as a result of the July 12, 2013 incident, (2) criminal contempt in the second degree as a result of the July 14, 2013 phone call from jail, and (3) criminal obstruction of breathing as a result of a prior incident in April 2013. [1]

         Following a jury trial, defendant was found guilty of unlawful imprisonment in the first degree, criminal contempt in the second degree and criminal obstruction of breathing, but was acquitted of the remaining charges. County Court then held a hearing, found defendant to be a persistent felony offender, and found it appropriate to enhance his sentence to a prison term of 15 years to life on the unlawful imprisonment conviction and to a term of 365 days in jail for each of the other two convictions, to run concurrently. Defendant appeals.

         The verdict finding defendant guilty of unlawful imprisonment in the first degree is not against the weight of the evidence [2]. Initially, because defendant made only a general motion to dismiss the indictment at the close of the People's proof and again at the close of the evidence, he failed to preserve his challenge to the legal sufficiency of the evidence on the unlawful imprisonment count (see People v Criss, 151 A.D.3d 1275, 1276 [2017], lv denied 30 N.Y.3d 979');">30 N.Y.3d 979 [2017]; People v Novak, 148 A.D.3d 1352, 1353 [2017], lv denied 29 N.Y.3d 1084');">29 N.Y.3d 1084 [2017]). Regardless, in conducting a weight of the evidence review, this Court necessarily evaluates whether the elements of the challenged crime were proven beyond a reasonable doubt (see People v Criss, 151 A.D.3d at 1276; People v Scippio, 144 A.D.3d 1184, 1185 [2016], lv denied 28 N.Y.3d 1150');">28 N.Y.3d 1150 [2017]). In considering the weight of the evidence, this Court views "the evidence in a neutral light, weighing the conflicting testimony and the relative strength of any conflicting inferences that may be drawn, and giving due deference to the jury's credibility assessments... [to determine whether] the jury was justified in finding defendant guilty beyond a reasonable doubt" (People v Reynolds, 81 A.D.3d 1166, 1167 [2011], lv denied 16 N.Y.3d 898');">16 N.Y.3d 898 [2011]; see People v Whyte, 144 A.D.3d 1393, 1394 [2016]; People v Gunn, 144 A.D.3d 1193, 1194 [2016], lv denied 28 N.Y.3d 1145');">28 N.Y.3d 1145 [2017]).

         "A person is guilty of unlawful imprisonment in the first degree when he [or she] restrains another person under circumstances which expose the latter to a risk of serious physical injury" (Penal Law § 135.10). In this context, to restrain "'means to restrict a person's movements intentionally and unlawfully in such manner as to interfere substantially with his or her liberty by moving him or her from one place to another, or by confining him or her'" in one place, "'without consent and with knowledge that the restriction is unlawful'" (People v Irby, 140 A.D.3d 1319, 1320 [2016] [brackets omitted], lv denied 28 N.Y.3d 931');">28 N.Y.3d 931 [2016], quoting Penal Law § 135.00 [1]; see People v Kruppenbacher, 81 A.D.3d 1169, 1172 [2011], lv denied 17 N.Y.3d 797');">17 N.Y.3d 797 [2011]). A person "is deemed to have been moved without consent when that movement is accomplished by, as relevant here, physical force or intimidation" (People v Irby, 140 A.D.3d at 1321 [internal quotation marks, brackets and citations omitted]; see People v Murrell, 148 A.D.3d 1296, 1298 [2017]). "[A]ctual serious physical injury need not occur; rather, first-degree unlawful imprisonment only requires that the circumstances expose the restrained person to a risk, of unspecified degree, of serious physical injury" (People v Irby, 140 A.D.3d at 1321 [internal quotation marks, brackets and citation omitted]; see People v Daniels, 97 A.D.3d 845, 848 [2012], lv denied 20 N.Y.3d 931');">20 N.Y.3d 931 [2012]).

         The victim testified that she was in the bathroom of her apartment when defendant suddenly appeared. She testified that she walked toward the apartment door to leave, but defendant pulled a revolver from his pocket, pointed it at her and told her to sit down and that he was not joking. She further testified that, at different points during the night, defendant struck her and ordered her to go upstairs, go back downstairs and to perform certain sexual acts, and she complied because he had a gun. At one point, defendant asked if she wanted to play Russian Roulette. According to the victim, she did not attempt to leave the apartment again because she felt that she could not get away, and she was afraid that defendant would hurt her or himself if she tried to escape. The victim was physically much smaller than defendant, who testified that he worked out. In contrast to the victim's version of events, defendant testified that the victim invited him to her apartment and they engaged in consensual sexual acts; he denied having a gun or forcing her to do anything. Neither a gun nor bullets were located after defendant was arrested.

         Defendant's argument centers on the victim's credibility. It appears that the jury did not find the victim completely credible, as evinced by the verdicts to acquit defendant of several charges. Nevertheless, the jury is entitled to selectively credit some portions of a witness's testimony while discounting other portions, and we should not intrude upon those credibility determinations (see People v Negron, 91 N.Y.2d 788, 792 [1998]; People v Sheppard, 107 A.D.3d 1237, 1239 [2013], lv denied 22 N.Y.3d 1203');">22 N.Y.3d 1203 [2014]; People v Hoppe, 96 A.D.3d 1157, 1159 [2012], lv denied 19 N.Y.3d 1026 [2012]). While defendant argues that the verdicts on the other counts indicate that the jury found that he did not possess a weapon, that is not necessarily true. In any event, the statutory element of "a risk of serious physical injury" (Penal Law § 135.10) does not require use of a weapon; for example, evidence of a violent attack could support an inference that serious physical injury would be inflicted on the victim (see People v Logan, 198 A.D.2d 439, 440 [1993] [pushing and choking a victim exposed her to risk of serious physical injury]; People v Barnes, 151 A.D.2d 586, 586-587 [1989]; compare People v Perry, 181 A.D.2d 833, 833-834 [1992]).

         The victim testified that defendant struck her more than once, threatened that he was not joking when she walked toward the door, and had hit and choked her on previous occasions. Based on this proof, the jury could infer that she was at risk of serious physical injury (see People v Logan, 198 A.D.2d at 440; People v Barnes, 151 A.D.2d at 586-587). Although a different verdict would not have been unreasonable (see People v Wells, 141 A.D.3d 1013, 1023 [2016], lvs denied 28 N.Y.3d 1183, 1189 [2017]), the jury chose to credit the portion of the victim's testimony establishing that defendant kept her from leaving the apartment and directed her movement within the apartment throughout the night by threatening her - either with a gun or through physical force or intimidation. It was plausible that defendant used force or intimidation on this occasion based on his previous acts of domestic violence against her. Viewing all of the proffered evidence in a neutral light, weighing it and deferring to the jury's credibility determinations, the verdict convicting defendant of unlawful imprisonment in the first degree is not against the weight of the evidence (see id.; People v Kruppenbacher, 81 A.D.3d at 1173; People v Meseck, 52 A.D.3d 948, 949-950 [2008], lv denied 11 N.Y.3d 739');">11 N.Y.3d 739 [2008]; People v Miller, 262 A.D.2d 796, 797-798 [1999]).

         Inasmuch as defendant failed to argue before County Court that the charge of unlawful imprisonment was duplicitous, that argument has not been preserved for our review (see People v Allen, 24 N.Y.3d 441, 449-450 [2014]; People v Simmons, 115 A.D.3d 1018, 1018 [2014]). Similarly, defendant did not preserve his argument that the sentence imposed was vindictive and constituted a penalty for exercising his right to ...


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