Summary
The Appellate Division, First Department affirmed the defendant's convictions for second-degree kidnapping, first-degree attempted rape, first-degree sexual abuse, and second-degree assault following a jury trial. The court found the verdicts supported by legally sufficient evidence and not against the weight of the evidence, while addressing alternative arguments on the merits regarding merger doctrines and evidentiary sufficiency. Claims regarding unpreserved errors, including courtroom spectator exclusion and changes to felony charges during summation, were deemed harmless or declined for review in the interest of justice.
Topics
Practice areas
Questions Presented
- Whether the kidnapping charge should be merged with the assault and rape charges under the merger doctrine.
- Whether the evidence was legally sufficient to support the conviction for attempted first‑degree rape.
- Whether the evidence was legally sufficient to support the conviction for first‑degree sexual abuse.
- Whether the change of the required felony for second‑degree assault from kidnapping to rape prejudiced the defendant.
- Whether the exclusion of a courtroom spectator was proper and harmless.
Holdings
- The merger doctrine does not apply; the kidnapping conviction is upheld because the asportation was not minimal and the manner of detention was egregious.
- The conviction for attempted first‑degree rape is affirmed; the evidence of reaching under the victim's shirt, twisting her neck, and holding her down satisfies the statutory elements.
- The conviction for first‑degree sexual abuse is affirmed; the evidence of sexual motivation was sufficient.
- The error, if any, was harmless because the evidence of guilt was overwhelming and the change did not affect the defendant’s ability to present a meaningful defense.
- The exclusion was proper based on the spectator’s misconduct and did not prejudice the defendant.
Key quotations
“[u]nder general societal norms," her stomach was "sufficiently personal or private that it would not be touched in the absence of a close relationship between the parties"”
Factual background
Afflick, a security guard, seized a victim on a largely empty holiday, secreted her onto a deserted floor, and held her there where she could not call for help. He later took her to an abandoned area, punched her, reached under her shirt, twisted her neck, held her down, and attempted rape. The jury convicted him on four separate charges.
Procedural history
The trial court convicted Afflick of kidnapping in the second degree, attempted rape in the first degree, sexual abuse in the first degree, and assault in the second degree. The convictions were affirmed by the Supreme Court, New York County. Afflick appealed, arguing merger of kidnapping with other charges, insufficiency of evidence, and prejudice from a mid‑trial charge change. The Appellate Division reviewed the sufficiency of the evidence and the alleged errors.