

People v Halteman (2017 NY Slip Op 08461)





People v Halteman


2017 NY Slip Op 08461


Decided on December 5, 2017


Appellate Division, First Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on December 5, 2017

Renwick, J.P., Manzanet-Daniels, Mazzarelli, Kahn, Moulton, JJ.


4220/10 5088 5087

[*1]The People of the State of New York, Respondent,
vTitus Halteman, Defendant-Appellant.


Seymour W. James, Jr., The Legal Aid Society, New York (Nancy Little of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Patrick J. Hynes of counsel), for respondent.

Judgment, Supreme Court, New York County (Arlene D. Goldberg, J.), rendered August 18, 2011, convicting defendant, after a jury trial, of sexual abuse in the first degree, and sentencing him to a term of two years, unanimously modified, as an exercise of discretion in the interest of justice, to reduce the prison component of the sentence to 364 days, and otherwise affirmed.
The verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348—349 [2007]). There is no basis for disturbing the jury's credibility determinations.
The verdict was not legally repugnant, and the court properly denied defendant's application to resubmit the case to the jury for further deliberations. Under the court's charge, the jury could have found defendant guilty of first-degree sexual abuse but not guilty of first-degree rape (see People v Muhammad, 17 NY3d 532, 540 [2011]). The court followed the statutory definitions in charging the jury that rape required penetration, while sexual abuse only required touching. Even though, at defendant's request, the court gave the jury a dictionary definition of the vagina, it never instructed the jury that a touching of the victim's vagina by defendant's penis would necessarily constitute penetration. This remained a factual question, which the jury apparently resolved by finding a touching, but not a penetration.
We find, however, that defendant's sentence was excessive to the extent indicated and modify accordingly.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: DECEMBER 5, 2017
CLERK


