                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: April 16, 2015                    106042
________________________________

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

TROY PARKER,
                    Appellant.
________________________________


Calendar Date:   February 17, 2015

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

                             __________


     Catherine A. Barber, Albany, for appellant.

      P. David Soares, District Attorney, Albany (Brittany L.
Grome of counsel), for respondent.

                             __________


Clark, J.

      Appeal from a judgment of the County Court of Albany County
(Herrick, J.), rendered November 1, 2012, upon a verdict
convicting defendant of the crimes of sexual abuse in the first
degree, strangulation in the second degree and robbery in the
second degree.

      During the early morning hours of March 6, 2011, the victim
was returning home to her apartment in the City of Albany. As
she was entering her building, she saw defendant running toward
her from across the street; however, before she could get inside,
defendant shoved her into the vestibule, began choking her,
sexually assaulted her and demanded money and oral sex. During
the struggle with defendant, the victim dropped all of her
belongings, including her wallet. In an effort to show defendant
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that she had no money, the victim bent down to retrieve the
wallet, at which time she noticed that the front door to her
building had been left slightly ajar. As defendant reached for
her, the victim quickly grabbed what items she could and escaped
to the street to scream for help. Upon seeing the distraught
victim running toward them and a man running in the opposite
direction, two men came to the victim's aid and called 911.

      When the police arrived, the victim told them that she had
lost her mobile phone during the assault and gave the officers a
set of keys she had picked up during the struggle that did not
belong to her. In addition to keys, the key ring contained a
Kmart key-tag membership card that police later found to be
jointly registered to defendant and his long-time girlfriend,
listing an address in the City of Schenectady, Schenectady
County. Contemporaneous with the attack, police separately
investigating a report of a parked car blocking a driveway across
the street from the victim's apartment came upon a vehicle that
was found to be registered to the girlfriend at the same address.
Later, upon arriving at the Schenectady address to execute a
search warrant, the police were invited inside by defendant's
girlfriend, who had answered the door and introduced herself.
Defendant then attempted to flee the residence through a back
door, only to reenter and be arrested.

      Following a jury trial, defendant was convicted of sexual
abuse in the first degree, strangulation in the second degree and
robbery in the second degree and sentenced as a persistent
violent felony offender to concurrent prison terms of 22 years to
life on his sexual abuse and strangulation convictions, to run
consecutively with a prison term of 18 years to life on his
robbery conviction. Defendant now appeals.

      Initially, defendant's general motion to dismiss the
charges against him at the conclusion of the People's case is
insufficient to preserve for appellate review his legal
sufficiency of the evidence claim (see People v Hawkins, 11 NY3d
484, 492 [2008]; People v Finger, 95 NY2d 894, 895 [2000]).
However, to the extent that defendant also contends that his
convictions are against the weight of the evidence – a challenge
which bears no preservation requirement – we nonetheless
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undertake "an evaluation of whether all elements of the charged
crime[s] were proven beyond a reasonable doubt at trial" (People
v Menegan, 107 AD3d 1166, 1169 [2013] [internal quotation marks
and citations omitted]; see People v Danielson, 9 NY3d 342, 348-
349 [2007]; People v Romero, 7 NY3d 633, 643-644 [2006]; People v
Bleakley, 69 NY2d 490, 495 [1987]). In this regard, we are not
persuaded by defendant's contention and determine that the
verdict is not against the weight of the evidence.

      As pertinent here, a person is guilty of sexual abuse in
the first degree when he or she subjects another person to sexual
contact "[b]y forcible compulsion" (Penal Law § 130.65; see Penal
Law § 130.00 [3], [8]). The victim here testified that defendant
pushed his way into her apartment building, began choking her,
lifted her off the ground, slid his hand up her leg under her
dress and touched her on the outside of her underwear.
Throughout the attack she was kicking defendant, screaming and
trying to get away. Defendant contends that the victim's
testimony is insufficient to demonstrate that he was the
perpetrator of the acts described inasmuch as she failed to
identify him as her assailant when showed a photo array. In this
regard, the victim explained that she was unable to get a good
view of her assailant's face in light of their size differential.
However, the victim and the two eyewitnesses all consistently
described the attacker as a black man with distinctive
dreadlocks; a description that accurately fit defendant. Further
evidence demonstrated that defendant's keys and his girlfriend's
vehicle were found at the scene of the crime and, in an oral
statement to police, defendant himself admitted to being present
in the area and "flirting" with a woman fitting the victim's
description on the night in question. Thus, while a different
result would not have been unreasonable, viewing the evidence in
a neutral light and deferring to the jury's credibility
determinations (see People v Robinson, 123 AD3d 1224, 1226-1227
[2014]; People v Mercado, 113 AD3d 930, 932 [2014], lv denied 23
NY3d 1040 [2014]), we find that defendant's conviction for sexual
abuse in the first degree is not against the weight of the
evidence.

      Turning next to the strangulation conviction, a person is
guilty of strangulation in the second degree "when he or she
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commits the crime of criminal obstruction of breathing or blood
circulation . . . and thereby causes stupor, loss of
consciousness for any period of time, or any other physical
injury or impairment" (Penal Law § 121.12; see Penal Law § 10.00
[9]). "To be substantial, pain must be 'more than slight or
trivial' but 'need not . . . be severe or intense'" (People v
Carte, 113 AD3d 191, 193 [2013], lv denied 23 NY3d 1035 [2014],
quoting People v Chiddick, 8 NY3d 445, 447 [2007]). "Significant
factors in determining whether pain is 'substantial' include the
objective nature of the injury, the victim's subjective
experience and whether the victim sought medical treatment"
(People v Carte, 113 AD3d at 193-194 [citations omitted]). Here,
as noted above, the victim testified that defendant forced his
way into her apartment building, began choking her and lifted her
off the ground. She further testified that, after the attack,
she felt severe pain throughout her entire neck and back and
could not speak. The medical testimony presented by the People
indicates that the victim was diagnosed with a tracheal contusion
and multiple scratches and abrasions and that the area around her
throat was very painful to the touch. Thus, we also find that
defendant's conviction of this crime is not against the weight of
the evidence.

      Finally, with respect to the robbery conviction, as
relevant here, a defendant is guilty of robbery in the second
degree "when he [or she] forcibly steals property and when [i]n
the course of the commission of the crime . . ., he or [she]
[c]auses physical injury to any person who is not a participant
in the crime" (Penal Law § 160.10 [2] [a]). "A person commits
'forcible stealing' when, during the commission of a larceny,
such individual 'uses or threatens the immediate use of physical
force upon another person for the purpose of . . . [p]reventing
or overcoming resistance to the taking of the property or to the
retention thereof immediately after the taking'" (People v
Gordon, 23 NY3d 643, 649-650 [2014], quoting Penal Law § 160.00
[1]). Here, the victim testified that defendant demanded money
from her and that, after fleeing from defendant, she no longer
had her mobile phone despite having heard it ring during the
assault. Because the phone in question was not recovered and
there was no evidence of its use following the alleged assault,
defendant contends that reversal of his conviction for robbery is
                              -5-                106042

warranted. However, "[a]s the Court of Appeals has recently
instructed, recovery of the property is not necessarily required
to support a conviction, and whether a defendant's intent in
using force was to retain possession of stolen property is a
question of fact that may be answered based upon reasonable
inferences drawn from his or her conduct and the surrounding
circumstances" (People v Gordon, 119 AD3d 1284, 1286 [2014], lv
denied 24 NY3d 1002 [2014]; see People v Gordon, 23 NY3d at 643,
650-651). Thus, after drawing reasonable inferences from the
record before us and according appropriate deference to the
jury's factual assessments and credibility determinations, we are
unpersuaded by defendant's argument and find this conviction to
be supported by the weight of the evidence.

      Next, County Court properly found that probable cause
existed for defendant's arrest. "Probable cause 'does not
require proof sufficient to warrant a conviction beyond a
reasonable doubt but merely information sufficient to support a
reasonable belief that an offense has been . . . committed' by
the person arrested" (People v Shulman, 6 NY3d 1, 25 [2005], cert
denied 547 US 1043 [2006], quoting People v Bigelow, 66 NY2d 417,
423 [1985]; accord People v August, 33 AD3d 1046, 1048 [2006], lv
denied 8 NY3d 878 [2007]). "When determining whether the police
had probable cause to arrest, the 'inquiry is not as to
defendant's guilt but as to the sufficiency for arrest purposes
of the grounds for the arresting officer's belief that [the
defendant] was guilty'" (People v Shulman, 6 NY3d at 25-26,
quoting People v Coffey, 12 NY2d 443, 452 [1963]; see CPL 140.10
[1] [b]). Here, at the time of defendant's arrest, the police
were aware that a set of keys and a vehicle found at the scene of
the attack were associated with defendant and that his physical
description matched that given by the victim and two other
witnesses. Additionally, the arresting officers testified that,
when they arrived at the address in Schenectady to execute the
search warrant, they observed a man fitting the attacker's
description attempting to leave the residence out of the back
door and, thus, moved quickly to secure his arrest. Accordingly,
we are satisfied that defendant's warrantless arrest was
supported by probable cause.
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      Finally, defendant contends that the sentence was overly
harsh and excessive specifically arguing that, because the jury
acquitted him of certain charges, County Court erred when it
sentenced him to "near the maximum allowable." We disagree. At
the time of his arrest, defendant was on parole and had an
extensive criminal history, including, but not limited to, three
prior violent felony convictions. Therefore, given the absence
of extraordinary circumstances or an abuse of discretion, we find
no reason warranting a reduction in the interest of justice (see
People v Bjork, 105 AD3d 1258, 1264 [2013], lv denied 21 NY3d
1040 [2013]).

      Defendant's remaining argument has not been preserved for
our review.

     McCarthy, J.P., Egan Jr. and Devine, JJ., concur.



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
