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
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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