        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

445
KA 15-00535
PRESENT: WHALEN, P.J., SMITH, CENTRA, TROUTMAN, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ROBERT G. CASE, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (CAITLIN M. CONNELLY OF
COUNSEL), FOR DEFENDANT-APPELLANT.

LORI PETTIT RIEMAN, DISTRICT ATTORNEY, LITTLE VALLEY (AMBER L. KERLING
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Cattaraugus County Court (Ronald D.
Ploetz, J.), rendered March 16, 2015. The judgment convicted
defendant, upon a jury verdict, of rape in the first degree, assault
in the second degree, strangulation in the second degree and unlawful
imprisonment in the first degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously reversed on the law and as a matter of discretion in the
interest of justice, a new trial is granted on the first and sixth
counts of the indictment, the fourth count is dismissed, and the fifth
count is dismissed without prejudice to the People to re-present any
appropriate charges under that count to another grand jury.

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of rape in the first degree (Penal Law § 130.35
[1]), assault in the second degree ([felony assault] § 120.05 [6]),
strangulation in the second degree (§ 121.12), and unlawful
imprisonment in the first degree (§ 135.10), arising from allegations
that he forcibly raped his estranged wife in the garage of their
former marital residence. Defendant failed to preserve for our review
his challenge to the legal sufficiency of the evidence because “his
motion for a trial order of dismissal was not specifically directed at
the grounds advanced on appeal” (People v Wright, 107 AD3d 1398, 1401,
lv denied 23 NY3d 1026; see People v Gray, 86 NY2d 10, 19). We
nevertheless exercise our power to review his challenge as a matter of
discretion in the interest of justice (see CPL 470.15 [6] [a]).

     We agree with defendant that the conviction of felony assault and
strangulation is not supported by legally sufficient evidence with
respect to the physical injury element (see generally People v
Bleakley, 69 NY2d 490, 495). The evidence submitted by the People,
i.e., that the victim sustained minor pain, a one-centimeter bruise on
                                 -2-                           445
                                                         KA 15-00535

her arm, and a swollen neck, is insufficient to establish either
physical impairment or substantial pain (see Penal Law § 10.00 [9];
People v Coleman, 134 AD3d 1555, 1555-1556, lv denied 27 NY3d 963;
Matter of Antonio J., 129 AD2d 988, 988; cf. People v Delaney, 138
AD3d 1420, 1421, lv denied 28 NY3d 928). Consequently, the felony
assault count must be dismissed. With respect to the strangulation
count, we conclude that the evidence is legally sufficient to support
a conviction of the lesser included offense of criminal obstruction of
breathing or blood circulation (Penal Law § 121.11). Because there
must be a new trial for the reasons discussed below, however, count
five of the indictment charging defendant with strangulation in the
second degree is dismissed with leave to the People to re-present any
appropriate charges under that count to another grand jury (see
generally People v Gonzalez, 61 NY2d 633, 635).

     Contrary to defendant’s further contention, viewing the evidence
in the light most favorable to the People (see People v Contes, 60
NY2d 620, 621), we conclude that the evidence is legally sufficient to
support the conviction of rape and unlawful imprisonment (see
generally Bleakley, 69 NY2d at 495). Furthermore, viewing the
evidence in light of the elements of the crimes of rape in the first
degree and unlawful imprisonment as charged to the jury (see People v
Danielson, 9 NY3d 342, 349), we conclude that the verdict with respect
to those crimes is not against the weight of the evidence (see
generally Bleakley, 69 NY2d at 495).

     Defendant failed to preserve for our review his contention that
the conviction of unlawful imprisonment must be dismissed based on the
merger doctrine (see People v Hanley, 20 NY3d 601, 605-606). In any
event, that contention is without merit (see People v Smith, 47 NY2d
83, 87).

     Defendant contends that County Court erred in precluding him from
introducing evidence that the victim had previously said, in effect,
that she would accuse defendant of rape in order to obtain a divorce
from him. Defendant contends that the court further erred in striking
the testimony of a witness regarding that statement. Any error in
precluding that evidence and striking that testimony is harmless
because “the precluded testimony was essentially cumulative of other
evidence presented at trial . . . , and . . . defendant was provided a
meaningful opportunity to present a complete defense” (People v
Ramsey, 59 AD3d 1046, 1048, lv denied 12 NY3d 858 [internal quotation
marks omitted]; see People v Davis, 111 AD3d 1302, 1304, lv denied 22
NY3d 1137; see also People v Herring, 225 AD2d 1065, 1066, lv denied
88 NY2d 937). Defendant’s contention that he was denied effective
assistance of counsel by his attorney’s failure to object or seek
other corrective action with respect to those alleged errors “is
raised for the first time in his reply brief and therefore is not
properly before us” (People v Sponburgh, 61 AD3d 1415, 1416, lv denied
12 NY3d 929; see People v Spears, 125 AD3d 1400, 1400, lv denied 25
NY3d 1172).

     We reject defendant’s contention that the court erred in denying
                                 -3-                           445
                                                         KA 15-00535

his motion to discharge a sworn juror. During the trial, that juror
indicated to a court officer that a courtroom spectator seated near
the defense table had befriended the juror on social media, and was
attempting to contact the juror. The juror concluded that the
spectator was attempting to contact him in order to persuade him to
acquit defendant. In order to discharge a sworn juror, the court
“must be convinced that the juror’s knowledge will prevent [him or]
her from rendering an impartial verdict” (People v Buford, 69 NY2d
290, 299). “On this record, we are unable to conclude that the court
could have been ‘convinced’ . . . , based on any unequivocal responses
of the juror, that the juror was ‘grossly unqualified to serve in the
case’ ” (People v Telehany, 302 AD2d 927, 928, quoting CPL 270.35 [1];
cf. People v Maddox, 175 AD2d 183, 183).

     We agree with defendant, however, that the prosecutor engaged in
misconduct on several occasions, and we reach defendant’s unpreserved
contention as a matter of discretion in the interest of justice (see
CPL 470.15 [6] [a]). Here, the prosecutor engaged in misconduct
during her closing statement by repeatedly appealing to the jury’s
sympathy, asking the jury to do justice and protect the victim by
convicting defendant, bolstering the victim’s credibility and
injecting the prosecutor’s personal opinions into the trial. Perhaps
most egregiously, in arguing that the jury should reject defendant’s
testimony that he confessed falsely to the police because he needed to
use the bathroom, the prosecutor gave her personal opinion regarding
defendant’s credibility by stating that she would sit in her own urine
rather than falsely admit that she committed a crime. “We can only
conclude herein that the prosecutor’s ‘inflammatory [comments had] a
decided tendency to prejudice the jury against the defendant’ ”
(People v Ballerstein, 52 AD3d 1192, 1194, quoting People v Ashwal, 39
NY2d 105, 110). Consequently, we conclude that the cumulative effect
of the prosecutorial misconduct, which substantially prejudiced
defendant’s rights (see generally People v Calabria, 94 NY2d 519,
523), requires reversal.

     Furthermore, “[i]n light of the foregoing, we agree with
defendant’s related contention that he was denied effective assistance
of counsel owing to defense counsel’s failure to object to the
prosecutor’s misconduct during summation” (People v Rozier, 143 AD3d
1258, 1260, citing People v Wright, 25 NY3d 769, 780-783). Defense
counsel also failed to object when the prosecutor introduced evidence
of prior bad acts despite having failed to seek a ruling regarding the
admissibility thereof, most notably the testimony of a sheriff’s
deputy that, months before this incident, defendant stole the victim’s
truck and was arrested for driving it while intoxicated while on the
way to attack a person with whom he believed the victim was having an
affair. Defense counsel also failed to object when the prosecutor
cross-examined defendant regarding that issue. Thus, reversal is also
required because defense counsel was ineffective in “fail[ing] to
object to prejudicial evidence of prior uncharged crimes and bad acts
introduced by the prosecutor” (People v Wiggins, 213 AD2d 965, 965).

     Contrary to defendant’s further contention, however, the court
did not err in refusing to suppress his statements to the police.
                                 -4-                           445
                                                         KA 15-00535

With respect to defendant’s contention that he was too intoxicated to
waive his rights, the record of the suppression hearing does not
establish that, at the time he waived his Miranda rights, he was
intoxicated “ ‘to the degree of mania, or of being unable to
understand the meaning of his statements’ ” (People v Schompert, 19
NY2d 300, 305, cert denied 389 US 874; see People v Beasley, 147 AD3d
1549, 1550; People v Peterkin, 89 AD3d 1455, 1455, lv denied 18 NY3d
885). With respect to defendant’s further contention that the
interrogating officers used leading questions that prompted him to
waive his rights and undermined the voluntariness of the confession,
“it cannot be said that the interrogation was fundamentally unfair or
that it induced defendant falsely to incriminate himself” (People v
Salgado, 130 AD2d 960, 961, lv denied 70 NY2d 754; see generally
People v Gutierrez, 96 AD3d 1455, 1455, lv denied 19 NY3d 997).
Finally, with respect to defendant’s contention that his statements
were involuntary because he was questioned over a two-hour period, it
is axiomatic that the length of the interrogation period “does not, by
itself, render the statement[s] involuntary” (People v Weeks, 15 AD3d
845, 847, lv denied 4 NY3d 892; see People v Clark, 139 AD3d 1368,
1369, lv denied 28 NY3d 928). Here, viewing “the totality of the
circumstances surrounding the interrogation” (People v Knapp, 124 AD3d
36, 41 [internal quotation marks omitted]), we conclude that “[t]he
record of the suppression hearing supports the court’s determination
that defendant knowingly, voluntarily and intelligently waived his
Miranda rights before making the statement[s]” (People v Irvin, 111
AD3d 1294, 1295, lv denied 24 NY3d 1044, reconsideration denied 26
NY3d 930; see People v Holland, 126 AD3d 1514, 1515, lv denied 25 NY3d
1165).

     Defendant’s further contentions are academic in light of our
determination.




Entered:   May 5, 2017                          Frances E. Cafarell
                                                Clerk of the Court
