Appellate judges wrestled Monday with a notorious robbery and gang rape case from December 2005 in which the least involved of three defendants got more prison time than the other two combined because he was the only one who exercised his right to a trial.
Terrance Terrell, now 28 but a Bay Shore High School basketball player at the time of the crime, was convicted of robbery and criminal sexual act — but acquitted of rape — for his part in an attack on a couple out on their first date.
High school homecoming king Douglas Payton, now 28, and Reginald Dugue, now 29, pleaded guilty. Payton is serving 15 years in prison and Dugue — the acknowledged ringleader of the attack — is serving 20.
But Suffolk County Court Judge Barbara Kahn gave Terrell a 38-year sentence.
Justice Betsy Barros of the Appellate Division, Second Department seemed to struggle with that disparity during oral arguments on Terrell’s appeal in Brooklyn.
“By all accounts, Dugue was the main player,” Barros said. “He called it all out. He held the gun to her head. He poked her in the ribs with it.” Dugue raped the female victim and forced her to perform oral sex on both himself and Terrell, Barros said.
“So he got 20 years and your client got 38,” she said to Terrell’s appellate attorney, Louis Mazzola of the Legal Aid Society. “How do we reconcile this?”
Mazzola acknowledged his client acted horribly.
“It was a brutal crime,” he said. “I wouldn’t stand here and minimize that.”
The three defendants robbed the man of his car stereo, beat him and forced him to watch them sexually assault his girlfriend.
But Mazzola said Terrell did less than Dugue and Payton and had no idea what they intended to do when they found the couple at a scenic Bay Shore cul-de-sac and saw his friends pull on ski masks.
“He didn’t know when to take the off ramp,” Mazzola said of his client. He argued that even though Terrell’s choice to go to trial forced the victims to come to testify about that night, he deserved no more time in prison than Payton.
But Assistant District Attorney Grazia Di Vincenzo said Kahn got the sentence right.
“His actions were that of a deviant sexual predator,” Di Vincenzo said. And then at sentencing, Di Vincenzo said Terrell described his actions as “the kind of mistakes all kids make.”
Barros replied, “That’s not the only thing he said. He also wrote a letter of apology.”
Di Vincenzo said Kahn could have sentenced Terrell to as much as 75 years in prison, but Barros said she also could have given him straight probation and youthful offender status.
Justice John Leventhal said a 17-year-old defendant, like Terrell was at the time, can commit a murder and be eligible for parole after 25 years. “This guy gets 38 years,” Leventhal continued. “That’s not excessive?”
Another part of the appeal concerned whether Kahn responded properly when one juror informed her that other jurors appeared to be deliberating and forming an opinion of the case even before testimony had finished. Kahn discussed the issue with attorneys in her chambers without Terrell present and opted to take no action, deciding that jurors had not improperly prejudged the case.
Mazzola said the trial transcript showed one juror had made up his mind fairly early and was trying to convince others before the case was done. He said neither Kahn nor the trial attorneys on both sides seemed interested in putting a halt to it.
Leventhal suggested the issue wasn’t enough to undo the conviction. “Jurors hear the testimony during a trial, and they lean one way or the other way,” he said. “But it’s not the same as a final determination.”
Di Vincenzo said even the complaining juror said no other juror had reached a final verdict before testimony ended.