                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: February 23, 2017                   107454
________________________________

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

ANTONIO LOPEZ BAUTISTA,
                    Appellant.
________________________________


Calendar Date:   January 13, 2017

Before:   Peters, P.J., Lynch, Devine, Clark and Aarons, JJ.

                             __________


      Robert Gregor, Lake George, for appellant, and appellant
pro se.

      Karen Heggen, District Attorney, Ballston Spa (Gordon W.
Eddy of counsel), for respondent.

                             __________


Clark, J.

      Appeal from a judgment of the County Court of Saratoga
County (Scarano, J.), rendered July 29, 2013, upon a verdict
convicting defendant of the crimes of assault in the second
degree (two counts), attempted kidnapping in the second degree,
sexual abuse in the first degree and criminal obstruction of
breathing or blood circulation.

      At roughly 2:30 a.m. on May 22, 2012, the victim drove her
husband to a restaurant that he had been hired to clean. As was
their custom, the victim waited in the vehicle while her husband
went inside the restaurant to turn on the lights and deactivate
the alarm. As the victim sat alone in the vehicle, defendant
opened the driver side door, pulled the victim out of the vehicle
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and repeatedly punched her. Defendant then dragged the victim to
a sidewalk roughly 58 feet away, where he pinned the victim to
the ground, continued to punch her, removed her shirt and bra,
pulled her pants and underwear partially down and grasped her
throat. The police, prompted by 911 calls, arrived during the
attack, and defendant fled. Defendant was ultimately found
hiding in nearby bushes.

      Thereafter, defendant was charged with assault in the first
degree, robbery in the first degree, attempted rape in the first
degree, attempted kidnapping in the second degree, robbery in the
second degree, sexual abuse in the first degree, two counts of
assault in the second degree and criminal obstruction of
breathing or blood circulation. Following a nine-day jury trial,
defendant was convicted of attempted kidnapping in the second
degree, both counts of assault in the second degree, sexual abuse
in the first degree and criminal obstruction of breathing or
blood circulation. County Court sentenced defendant to an
aggregate prison term of 11 years, followed by 10 years of
postrelease supervision. Defendant appeals.

      Defendant challenges his conviction for sexual abuse in the
first degree as being unsupported by legally sufficient evidence
and as against the weight of the evidence. As relevant here, a
conviction for sexual abuse in the first degree requires proof
that the defendant, by forcible compulsion, subjected another
person to sexual contact (see Penal Law § 130.65 [1]). Sexual
contact, in turn, 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" and includes, among other things,
"the touching of the victim by the actor, whether directly or
through clothing" (Penal Law § 130.00 [3]). Whether a
defendant's actions were motivated by a desire for sexual
gratification can be inferred from the defendant's conduct, as
well as the surrounding circumstances (see People v Hayes, 104
AD3d 1050, 1054 [2013], lv denied 22 NY3d 1041 [2013]; People v
King, 79 AD3d 1277, 1279 [2010], lv denied 16 NY3d 860 [2011];
People v Stewart, 57 AD3d 1312, 1315 [2008], lv denied 12 NY3d
788 [2009], cert denied 558 US 1116 [2010]).
                              -3-                107454

      At trial, the victim testified that defendant pinned her
down, "ripped" her shirt and bra off, exposing her breasts, and
"yank[ed]" her pants and underwear "down a short ways" as she
repeatedly pleaded with him to stop. The victim stated that she
felt defendant's penis pressed against her body and that she
heard defendant say in Spanish that he wanted sex. The victim's
account was largely corroborated by the testimony of the
responding police officer, as well as surveillance footage of the
attack, which depicted defendant on top of the victim and, at one
point, showed him throw something to the side. Contrary to
defendant's contention, the foregoing proof, viewed in the light
most favorable to the People (see People v Ramos, 19 NY3d 133,
136 [2012]; People v Hayes, 104 AD3d at 1054), was legally
sufficient to permit a rational jury to conclude that defendant's
actions were motivated by a desire for sexual gratification and,
thus, that he forcibly subjected the victim to sexual contact
(see People v Kruppenbacher, 81 AD3d 1169, 1172-1173 [2011], lv
denied 17 NY3d 797 [2011]; cf. Matter of Michael DD., 33 AD3d
1185, 1185-1186 [2006]; Matter of Najee A., 26 AD3d 258, 258-259
[2006], lv denied 7 NY3d 703 [2006]).

      Defendant asserts that certain inconsistencies rendered the
victim's testimony incredible as a matter of law. However, the
victim was thoroughly cross-examined on these inconsistencies and
they presented "classic credibility issue[s]," which the jury
plainly resolved against defendant (People v Roach, 263 AD2d 763,
763 [1999], lv denied 93 NY2d 1045 [1999]; see People v Cridelle,
112 AD3d 1141, 1143 [2013]; People v Allen, 13 AD3d 892, 894
[2004], lv denied 4 NY3d 883 [2005]). Moreover, the victim's
testimony was not contradicted by any compelling evidence and it
was not "so unworthy of belief as to be incredible as a matter of
law" (People v Wright, 214 AD2d 759, 762 [1995], lv denied 86
NY2d 805 [1995] [internal quotation marks and citation omitted];
see People v Cridelle, 112 AD3d at 1143; People v Fernandez, 106
AD3d 1281, 1285 [2013]). Defendant testified that his attack on
the victim was not sexually motivated; however, having
independently weighed the evidence, while considering it in a
neutral light and according deference to the jury's credibility
determinations (see People v Thiel, 134 AD3d 1237, 1239 [2015],
lv denied 27 NY3d 1156 [2016]; People v Hayes, 104 AD3d at 1054),
we cannot conclude that defendant's conviction for sexual abuse
                              -4-                107454

in the first degree was against the weight of the evidence (see
People v Wright, 88 AD3d 1154, 1157 [2011], lv denied 18 NY3d 863
[2011]; cf. Matter of Najee A., 26 AD3d at 258-259).

      Defendant also argues that, together, a litany of trial
errors deprived him of a fair trial. We disagree. Despite
certain alleged gaps in the chain of custody, County Court
properly ruled that the victim's shirt and pants were admissible,
as the responding police officer specifically described and
identified the nonfungible clothing (see People v Julian, 41 NY2d
340, 343 [1977]; People v Shoga, 89 AD3d 1225, 1226 [2011], lv
denied 18 NY3d 886 [2012]; People v Roblee, 83 AD3d 1126, 1127
[2011], lv denied 17 NY3d 809 [2011]). In addition, while the
prosecutor tended to lead her witnesses and repeat questions,
many of defendant's objections were sustained and,
notwithstanding defendant's failure to request a curative
instruction (see People v Murphy, 79 AD3d 1451, 1453 [2010], lv
denied 16 NY3d 862 [2011]), County Court instructed the jury that
questions were not evidence and to ignore the question if an
objection was sustained. Defendant failed to preserve his
further contention that he and another defense witness were
improperly questioned as to defendant's national origin and
understanding of the English language (see People v Brown, 114
AD3d 1017, 1020 [2014]; People v Lewis, 46 AD3d 943, 946 [2007]).
In any event, the prosecutor's brief exploration of these topics
was warranted given that defendant claimed to have mistaken the
victim for a woman who had persecuted his family in his hometown
and asserted that he took too much cold medicine before the
attack because he could not read the dosage instructions (see
People v Lewis, 46 AD3d at 946; People v Sylvers, 149 AD2d 920,
920 [1989], lv denied 74 NY2d 747 [1989]; People v Kong, 131 AD2d
783, 784 [1987], lv denied 70 NY2d 801 [1987]). Finally,
defendant failed to preserve most of his challenges to the
prosecutor's summation (see People v Perkins, 24 AD3d 890, 891
[2005], lv denied 6 NY3d 816 [2006]), which, in any event, are
unavailing. To the extent that the prosecutor improperly
commented on the victim's medical records, any such error was
harmless inasmuch as the records were solely relevant to charges
of which defendant was ultimately acquitted (see id.; People v
Baker, 4 AD3d 606, 608-609 [2004], lvs denied 2 NY3d 795 [2004]).
In short, while the prosecutor's performance may have been
                              -5-                107454

imperfect, we remain unpersuaded that defendant was deprived of a
fair trial.

      Defendant further contends that his conviction for
attempted kidnapping in the second degree merged with his
convictions for sexual abuse in the first degree and assault in
the second degree. Although defendant failed to preserve this
argument for our review (see CPL 470.05 [2]; People v Hanley, 20
NY3d 601, 606 [2013]), we will invoke our interest of justice
jurisdiction to take corrective action (see CPL 470.15 [6] [a];
People v Blair, 25 AD3d 1018, 1018 [2006], lv denied 6 NY3d 846
[2006]). The merger doctrine bars convictions for kidnapping
"based on acts which are so much the part of another substantive
crime that the substantive crime could not have been committed
without such acts and that independent criminal responsibility
may not fairly be attributed to them" (People v Cassidy, 40 NY2d
763, 767 [1976]; accord People v Bussey, 19 NY3d 231, 237 [2012];
People v Cain, 76 NY2d 119, 125 [1990]). While application of
the doctrine is dependent on the particular facts and
circumstances of each case, "a kidnapping is generally deemed to
merge with another offense . . . 'where there is minimal
asportation immediately preceding' the other crime or 'where the
restraint and underlying crime are essentially simultaneous'"
(People v Hanley, 20 NY3d at 606, quoting People v Gonzalez, 80
NY2d 146, 153 [1992]; see People v Robinson, 101 AD3d 1245, 1246
[2012], lv denied 20 NY3d 1103 [2013]).

      Here, the victim's testimony, as well as the surveillance
footage, established that defendant immediately began punching
the victim upon opening the door to her vehicle and that, after
dragging her roughly 58 feet, he continued to punch the victim
while forcibly subjecting her to sexual contact. This brutal
encounter lasted between three and four minutes. Under these
circumstances, because the conduct underlying the charge of
attempted kidnapping in the second degree was simultaneous to,
and inseparable from, the conduct underlying the charges of
sexual abuse in the first degree and assault in the second degree
(see People v Gonzalez, 80 NY2d at 153; People v Perez, 93 AD3d
1032, 1033 [2012], lvs denied 19 NY3d 1000 [2012]), we must apply
the doctrine of merger, reverse defendant's conviction of
attempted kidnapping in the second degree and dismiss that count
                              -6-                  107454

of the indictment (see People v Cassidy, 40 NY2d at 767-768;
People v James, 114 AD3d 1202, 1203-1204 [2014], lv denied 22
NY3d 1199 [2014]; People v Blair, 25 AD3d 1018, 1019 [2006], lv
denied 6 NY3d 846 [2006]; People v Swansbrough, 22 AD3d 877, 878
[2005]; compare People v Smith, 47 NY2d 83, 87-88 [1979]).

      Defendant's remaining contentions, including his claim of
ineffective assistance of counsel and his assertion that
attempted kidnapping in the second degree, assault in the second
degree and criminal obstruction of breathing or blood circulation
are inclusory concurrent counts of sexual abuse in the first
degree, have been examined and determined to be without merit.

     Peters, P.J., Lynch, Devine and Aarons, JJ., concur.



      ORDERED that the judgment is modified, as a matter of
discretion in the interest of justice, by reversing defendant's
conviction of attempted kidnapping in the second degree under
count four of the indictment; said count dismissed and the
sentence imposed thereon vacated; and, as so modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
