                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: October 23, 2014                   102780
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

HAROLD E. McCLOUD III,
                    Appellant.
________________________________


Calendar Date:   September 2, 2014

Before:   Lahtinen, J.P., Stein, McCarthy, Rose and Devine, JJ.

                             __________


     Richard V. Manning, Parishville, for appellant.

      Derek P. Champagne, District Attorney, Malone (Glenn
MacNeill of counsel), for respondent.

                             __________


McCarthy, J.

      Appeal from a judgment of the County Court of Franklin
County (Main Jr., J.), rendered May 18, 2009, upon a verdict
convicting defendant of the crimes of rape in the first degree,
attempted assault in the second degree, grand larceny in the
fourth degree, identity theft in the second degree, unlawful
possession of personal identification information in the third
degree, assault in the third degree (five counts), petit larceny
(two counts), unlawful imprisonment in the second degree (two
counts), criminal mischief in the fourth degree and menacing in
the second degree.

      Defendant was charged in a 21-count indictment with various
crimes allegedly committed against his paramour. Following a
jury trial, he was found guilty of 16 counts: rape in the first
                              -2-                102780

degree, attempted assault in the second degree, grand larceny in
the fourth degree, identity theft in the second degree, unlawful
possession of personal identification information in the third
degree, assault in the third degree (five counts), petit larceny
(two counts), unlawful imprisonment in the second degree (two
counts), criminal mischief in the fourth degree and menacing in
the second degree. County Court sentenced him to an aggregate
prison term of 18 years, followed by 20 years of postrelease
supervision, as well as fines and restitution. Defendant
appeals.

      The conviction of rape in the first degree was not against
the weight of the evidence. To establish that crime, the People
were required to prove that defendant engaged in sexual
intercourse with the victim by forcible compulsion (see Penal Law
§ 130.35 [1]). Forcible compulsion is defined to include
physical force or a threat that "places a person in fear of
immediate death or physical injury" (Penal Law § 130.00 [8]; see
People v Fulwood, 86 AD3d 809, 810 [2011], lv denied 17 NY3d 952
[2011]). In his statement to police, defendant admitted that he
had sexual intercourse with the victim, but claimed that it was
consensual. Therefore, the only element at issue was forcible
compulsion. The victim testified that after a day filled with
arguing and violence between them, defendant hit her head causing
it to slam into a door, repeatedly punched her in the leg,
refused to allow her to leave the bedroom, pushed her down on the
bed, straddled her body, choked her to the point that she could
not breathe, told her he was "going to make it hurt" and pinned
her hands over her head. When he let go of her hands to pull her
pants down, she scratched his face. He then put his penis into
her vagina and continued to have sex despite her telling him no,
to stop, and that she did not want to. After this incident,
friends and family members noticed scratches on defendant's face
or neck. The victim also testified about an incident
approximately two weeks prior to the rape, during which defendant
physically assaulted her numerous times. According due deference
to the jury's credibility determinations, the evidence proved
that defendant used physical force and caused the victim to fear
further physical injury or death, thereby establishing the
element of forcible compulsion (see People v Blond, 96 AD3d 1149,
1151-1152 [2012], lv denied 19 NY3d 1101 [2012]; People v
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Fulwood, 86 AD3d at 810-811). Thus, the rape conviction was not
against the weight of the evidence.

      The conviction of attempted assault in the second degree
was also not against the weight of the evidence. To prove that
crime, the People needed to show that defendant intended to cause
serious physical injury to another person and "engage[d] in
conduct which tend[ed] to effect the commission of such crime"
(Penal Law § 110.00; see Penal Law § 120.05 [1]). Attempted
assault in the second degree can be proven without any serious
physical injury or even any physical injury; "all that is
required is that the defendant 'intended such injury and engaged
in conduct directed at accomplishing that objective'" (People v
Agron, 106 AD3d 1126, 1128 [2013], lv denied 21 NY3d 1013 [2013],
quoting People v Audi, 88 AD3d 1070, 1072 [2011], lv denied 18
NY3d 856 [2011]; see People v Johnson, 107 AD3d 1161, 1163
[2013], lv denied 21 NY3d 1075 [2013]). Intent can be inferred
from a defendant's conduct and the surrounding circumstances (see
People v Naradzay, 11 NY3d 460, 467 [2008]; People v Carte, 113
AD3d 191, 195 [2013], lv denied 23 NY3d 1035 [2014]). In his
statement to police, defendant said that after they had
consensual sex, the victim became agitated and he put his hand on
her neck for a few seconds to calm her down. On the other hand,
the victim testified that, prior to defendant forcibly having sex
with her, he straddled her and placed both hands around her neck,
squeezing so hard that she was unable to speak or breathe and her
body felt "shaky" and "tingly." She indicated that she came
close to passing out, and that this incident was worse than the
two choking incidents that occurred earlier that day (for which
defendant was acquitted). A physician testified that when
pressure is applied to the neck so that it prevents a person from
breathing, such constriction can cause bruising and hemorrhaging,
but can also cause loss of consciousness, brain damage, loss of
memory, paralysis and even death. Considering the victim's
testimony concerning defendant's violent conduct toward her
before and after the choking,1 the jury could reasonably have


     1
        We reject defendant's argument assigning error to the use
of the word "strangling" in the indictment while the testimony
referred to him "choking" the victim. Contrary to his assertion
                              -4-                102780

inferred that he intended to cause her serious physical injury.
Giving deference to the jury's credibility findings, the
conviction for attempted assault in the second degree is not
against the weight of the evidence (see People v Carte, 113 AD3d
at 195; People v Bruno, 47 AD3d 1064, 1066 [2008], lv denied 10
NY3d 809 [2008]).

      The merger doctrine is inapplicable here. That doctrine
prevents a conviction for kidnapping or a similar crime based on
acts that are an integral part of another substantive crime, so
as to preclude independent criminal liability (see People v
Gonzalez, 80 NY2d 146, 153 [1992]; People v Woodard, 93 AD3d 944,
948 [2012]). While the choking of the victim was one of the acts
constituting the element of forcible compulsion for the rape
count, it was also a discrete act that was not necessary for the
commission of the rape and was an independent crime warranting
separate punishment (see People v Woodard, 93 AD3d at 948-949).

      County Court did not err in denying defendant's motion to
sever certain counts of the indictment. While the counts
charging defendant with the theft and use of the victim's debit
card and camera were based on different criminal transactions
than the counts related to the physical abuse he perpetrated on
her, offenses are joinable in a single indictment if proof of one
"would be material and admissible as evidence in chief upon a
trial of the second" (CPL 200.20 [2] [b]; see People v Carter, 74
AD3d 1375, 1378 [2010], lvs denied 15 NY3d 772 [2010]). Here,
proof of the assault-based charges would be material and
admissible at a trial on the theft-based charges, as Molineux
evidence to prove defendant's motive, intent and lack of mistake,
as well as the nature of the parties' relationship (see People v
Washpun, 134 AD2d 858, 858 [1987], lv denied 70 NY2d 1012 [1988];


that strangulation was inaccurately used here because it means to
kill by choking, the terms strangling and choking are often used
interchangeably (see e.g. People v Bonney, 69 AD3d 1116, 1117
[2010], lv denied 14 NY3d 838 [2010]), and the Penal Law does not
require death to prove strangulation (see e.g. Penal Law § 121.12
[enacted after defendant's conviction, creating new crime of
"strangulation in the second degree"]; Penal Law § 121.13).
                                -5-                102780

see also   People v Ivy, 217 AD2d 948, 949 [1995], lv denied 86
NY2d 843   [1995]). As the offenses were joinable under the
statute,   the court properly denied the severance motion (see
People v   Lane, 56 NY2d 1, 7 [1982]).

      Defendant was not deprived of a fair trial by the testimony
of the People's expert. The expert was properly permitted to
testify regarding rape trauma syndrome and battered spouse
syndrome to explain to the jury why a victim may exhibit certain
behavior or engage in certain actions that jurors might not
expect or understand (see People v Williams, 20 NY3d 579, 584
[2013]; People v Spicola, 16 NY3d 441, 463 [2011], cert denied
___ US ___, 132 S Ct 400 [2011]; People v Taylor, 75 NY2d 277,
289 [1990]). The expert had never met the victim or reviewed any
reports about the charged crimes and did not render an opinion
about the victim's credibility, whether she had been the victim
of sexual abuse or whether her behavior fit within the syndromes
(see People v Spicola, 16 NY3d at 465-466; People v Jabaut, 111
AD3d 1140, 1145 [2013], lv denied 22 NY3d 1139 [2014]). Although
the expert discussed the behavior of abusers, that testimony was
necessary to explain the cycle of domestic violence and how
victims respond to their abusers (see People v Diaz, 20 NY3d 569,
575 [2013]; People v Williams, 20 NY3d at 584). The People did
not ask inappropriate hypothetical questions that were tailored
to the facts of this case; rather, the expert's testimony closely
reflected the victim's testimony in some regards because it
appears that the relationship between the victim and defendant
resembled a classic example of a domestic violence relationship
(see People v Diaz, 20 NY3d at 575-576; compare People v
Williams, 20 NY3d at 584).

      The content of the verdict sheet did not constitute error
per se, as defendant consented to the annotated verdict sheet and
no mode of proceedings error occurred so as to circumvent the
preservation requirement. CPL 310.20 (2) allows the trial court,
when submitting two or more counts charging offenses from the
same article of law, to "set forth the dates, names of
complainants or specific statutory language, without defining the
terms, by which the counts may be distinguished." Absent a
defendant's consent, any other notations on the verdict sheet
"offend the letter of the law" (People v Damiano, 87 NY2d 477,
                              -6-                102780

482 [1996]; see People v Bjork, 105 AD3d 1258, 1264 [2013], lv
denied 21 NY3d 1040 [2013], cert denied ___ US ___, 134 S Ct 1306
[2014]; People v Washington, 9 AD3d 499, 500 [2004], lvs denied 3
NY3d 675, 680, 682 [2004]).

      Here, County Court included the dates for all offenses,
even for counts that were the only offenses charged under a
particular article of the law. Although most of the counts
charged an offense where at least one other count was alleged
under the same article, some were annotated with dates, time of
day, the victim's name and language not from the relevant statute
but from the indictment. Although the dates and victim's name
were authorized by statute in the latter circumstances, the dates
in the former circumstances and the indictment language were not
(see CPL 310.20 [2]).2 Despite this variation from the statute,
defendant consented to the annotated verdict sheet. While
defendant now argues that the record does not show his consent to
the final version of the verdict sheet, counsel saw a prior
version during a conference, he asked for specific changes, the
court stated the changes it would make in response to the defense
request, the final version contains those changes and defendant
did not object prior to the court giving the verdict sheet to the
jury. Under the circumstances, although it appears that counsel
and defendant explicitly consented, they at least impliedly
consented to the annotations, which is sufficient (see People v
Washington, 9 AD3d at 500-501). Although the court did not
instruct the jury regarding those notations, as required by
statute (see CPL 310.20 [2]), defendant failed to preserve that
argument through a proper objection (see People v Hicks, 12 AD3d
1044, 1045 [2004], lv denied 4 NY3d 799 [2005]). The omission of
such limiting instructions and deviation from the statutorily-
authorized annotations to the verdict sheet do not constitute
mode of proceedings errors that would require reversal regardless


    2
        Notably, the time of day was helpful to clarify certain
charges, particularly the three counts of attempted assault in
the second degree based on defendant choking the same victim at
different times during the same day. The annotations permitted
by statute would not have been sufficient to differentiate those
counts.
                              -7-                102780

of preservation (see People v Wheeler, 257 AD2d 673, 673-674
[1999], lv denied 93 NY2d 930 [1999]; see also People v
Agramonte, 87 NY2d 765, 769-770 [1996]; People v Mariko, 267 AD2d
113, 113 [1999], lv denied 94 NY2d 950 [2000]).

      County Court did not err in its Molineux/Ventimiglia
ruling. The People sought to use evidence of defendant's alleged
uncharged conduct with numerous women that purportedly evinced
defendant's "continuing plan to satisfy his desire for compelled
or forced sex." County Court denied the People's application to
use such material in its case-in-chief on the ground that the
prejudicial effect would outweigh its probative value, but the
court reserved its decision as to whether the material could be
used on cross-examination of defendant or on rebuttal. Courts
may reasonably determine to reserve decision on a
Molineux/Ventimiglia application, especially as to the use of
such information on cross-examination, until they can assess the
testimony put forth at trial and the defenses that are being
raised (see People v Torres, 19 AD3d 732, 734 [2005], lv
dismissed 5 NY3d 810 [2005]; People v Mahan, 195 AD2d 881, 883-
884 [1993]; see also People v Ventimiglia, 52 NY2d 350, 362
[1981] [directing the People to request a ruling outside the
presence of the jury, but noting that, as to timing, "[w]hether
some time prior to trial, just before the trial begins or just
before the witness testifies will depend upon the circumstances
of the particular case"]; People v Mitchell, 112 AD3d 1071, 1073
[2013] [noting that a defendant's testimony and defenses may open
the door to Molineux evidence that would otherwise be excluded],
lv denied 22 NY3d 1140 [2014]; People v Kato, 24 AD3d 152, 152
[2005], lv denied 6 NY3d 835 [2006]).

      Defendant received meaningful representation. When
reviewing a claim of ineffective assistance of counsel, courts
must avoid confusing actual ineffectiveness with mere losing
tactics, and a defendant must demonstrate the absence of
strategic or reasonable explanations for counsel's alleged
shortcomings (see People v Benevento, 91 NY2d 708, 712 [1998]).
To prevail on such a claim, any errors by counsel must be "so
egregious and prejudicial as to render the trial unfair" (People
v Timberlake, 42 AD3d 761, 762 [2007]). Here, counsel did not
fail to provide meaningful representation through his lack of an
                              -8-                102780

objection to the comments of a potential juror during voir dire
regarding the reputation of a police officer who was to be a
witness. County Court asked follow-up questions that diminished
the possible negative effects of those comments and instructed
the jurors that they must scrutinize the testimony of police
officers as they would the testimony of any other witness,
thereby neutralizing any likelihood of substantial prejudice to
defendant (see People v Wells, 7 NY3d 51, 60 [2006]). Thus,
counsel's failure to request further curative instructions did
not constitute ineffective assistance.

      While defendant now attacks counsel's cross-examination of
the officer who obtained defendant's statement, it appears that
counsel was employing a reasonable strategy to show that
defendant was cooperative with police, indicating that he had
nothing to hide. Counsel's choice to decline to cross-examine
several witnesses also appears strategic, as he avoided
highlighting potentially damaging portions of their testimony
(see People v Aiken, 45 NY2d 394, 400 [1978]). Defendant
contends that counsel's cross-examination of the victim was
inept, in that it elicited damaging testimony regarding the
choking. Viewed in the context of counsel's summation, however,
this was part of an effective strategy, considering that the jury
acquitted defendant of two of the three counts alleging offenses
based on the choking. When viewed in totality, including
counsel's success in obtaining dismissal of two counts prior to
trial and acquittal on three counts at trial, counsel provided
defendant with meaningful representation (see People v Noguel, 93
AD3d 1319, 1321 [2012], lv denied 19 NY3d 965 [2012]; People v
Head, 90 AD3d 1157, 1159 [2011]).

      We have reviewed defendant's remaining contentions and find
them to be without merit.

     Lahtinen, J.P., Stein, Rose and Devine, JJ., concur.
                        -9-                  102780

ORDERED that the judgment is affirmed.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
