| People v Moore |
| 2009 NY Slip Op 01253 [59 AD3d 809] |
| February 19, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Victor Moore,Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Steven M. Sharp, Law Intern), forrespondent.
Lahtinen, J. Appeal from a judgment of the County Court of Albany County (Breslin, J.),rendered May 31, 2007, upon a verdict convicting defendant of the crimes of course of sexualconduct against a child in the first degree (two counts) and rape in the first degree.
Defendant and the mother of the victim (born in 1991) were married in 1998, separated in2003 and then divorced. A custody dispute developed regarding the one child born during themarriage (the victim's half sister) and, shortly before an October 2006 custody hearing, themother contacted police on behalf of the victim, who related that she had been subjected tosexual contact by defendant during the time he was married to the mother. Thereafter, defendantwas charged in a three-count indictment with the crimes of course of sexual conduct against achild in the first degree for acts occurring between November 1998 and the end of January 2001(see Penal Law former § 130.75 [a]), course of sexual conduct against a child inthe first degree for acts occurring between February 2001 and the end of April 2003 (seePenal Law § 130.75 [1] [b]), and rape in the first degree perpetrated between November19, 1998 and the first week of January 1999. He rejected a plea deal that included five years ofincarceration and five years of postrelease supervision. A one-day jury trial ensued, whichresulted in a conviction on all counts. County Court sentenced defendant to two consecutive25-year prison terms for his convictions of course of sexual conduct against a child, a concurrent25-year prison term for his rape conviction, and five years of postrelease supervision. Defendantappeals.[*2]
Initially, we consider defendant's argument that theverdict was against the weight of the evidence. Where, as here, defendant challenges the weightof the evidence and an acquittal would not have been unreasonable, we "must weigh conflictingtestimony, review any rational inferences that may have been drawn from the evidence andevaluate the strength of such conclusions" (People v Danielson, 9 NY3d 342, 348 [2007]). The victim testifiedregarding the five years of sexual abuse by defendant beginning when she was seven years old in1998 and continuing until he no longer resided with the family in 2003. Defendant testified in hisown defense, denying that he had engaged in any of the criminal conduct alleged by the victimand implying that she fabricated her story in an attempt to curtail his effort to gain custody of hisdaughter (the victim's half sister). The jury was faced with significant credibility issues and wediscern no reason to depart from its resolution of those issues (see People v Gayle, 53 AD3d 857,859 [2008], lv denied 11 NY3d 832 [2008]; People v Gilliam, 36 AD3d 1151, 1152-1153 [2007], lvdenied 8 NY3d 946 [2007]). Having weighed and assessed the evidence in light of thecharged elements of the crime (seePeople v Johnson, 10 NY3d 875, 878 [2008]), we are unpersuaded that the verdict wasagainst the weight of the evidence.
We do find merit in defendant's argument that the two counts charging him with course ofsexual conduct against a child were multiplicitous. Although this issue was not properlypreserved, we exercise our interest of justice jurisdiction to take corrective action with respectthereto (see CPL 470.15; Peoplev Chapman, 54 AD3d 507, 508 [2008]; People v Cruz, 41 AD3d 893, 894 [2007], lv denied 10NY3d 933 [2008]). "The crime of course of sexual conduct against a child in the first degree is acontinuing offense" and "[a]n indictment cannot charge a defendant with more than one count ofa crime that can be characterized as a continuing offense unless there has been an interruption inthe course of conduct" (People vQuinones, 8 AD3d 589, 589-590 [2004], lv denied 3 NY3d 710 [2004]). Here,there was no interruption of the course of defendant's alleged conduct. The date used by theprosecution to divide the counts was not a break in the conduct or a change in the age of thechild,[FN1]but was the effective date of an amendment to the statute that increased the permitted age of avictim of this crime from less than 11 to less than 13 (see L 2000, ch 1, § 44 [effFeb. 1, 2001]). If only the earlier statute had remained in effect, defendant would have beenproperly charged with one count commencing in 1998 and ending with the child's eleventhbirthday in 2002. In addition, had the amended statute been in effect at the time that defendant'sconduct commenced, he could have been properly charged with one count for his continuousconduct covering the entire five-year period. The amendment of the statute after his course ofconduct had commenced, with no concomitant showing of a break in that conduct, cannot serveto create two separate crimes with consecutive sentences under these circumstances. Thus, theconviction of the second count of the indictment must be reversed and that count dismissed(see People v Cruz, 41 AD3d at 897).
We further find merit in defendant's contention that without obtaining a properVentimiglia ruling the People improperly introduced as part of their direct case evidencethat defendant had sold marihuana in 2002. That evidence had been addressed within the contextof defendant's Sandoval application, but Sandoval andVentimiglia—while both addressing admissibility of other crimes and badacts—do so for different purposes with different analyses. [*3]Sandoval involves a request by a defendant for a pretrialdetermination, if the defendant should testify, regarding whether (and the extent to which) thePeople may use prior crimes or bad acts in cross-examination (see e.g. CPL240.43; People v Hayes, 97 NY2d 203, 207 [2002]; People v Matthews, 68NY2d 118, 121-122 [1986]). Determining the use and scope of such evidence oncross-examination rests largely within the trial court's discretion (see People v Hayes, 97NY2d at 207-208). When the People desire to use such evidence in their direct case, theymust make a Ventimiglia showing before presenting the proof in front of a jury (seePeople v Spotford, 85 NY2d 593, 597 [1995]; People v Chaney, 298 AD2d 617, 618[2002], lv dismissed and denied 100 NY2d 537 [2003]). In a Ventimigliaanalysis, the trial court addresses first whether the evidence is relevant to a pertinent issue (aquestion of law typically involving Molineux exceptions) and then makes thediscretionary determination whether the probative value outweighs the risk for real prejudice(see People v Till, 87 NY2d 835, 836-837 [1995]; People v Wlasiuk, 32 AD3d 674, 676-677 [2006], lvdismissed 7 NY3d 871 [2006]; People v Taylor, 2 AD3d 1306, 1308 [2003], lv denied 2NY3d 746 [2004]; Prince, Richardson on Evidence §§ 4-501, 4-502 [Farrell 11thed]).
At the Sandoval hearing, defendant urged County Court not to permit the People toquestion him regarding a 2002 marihuana violation in the event he testified. County Court ruledthat, while it would not permit reference to the violation as a prior crime, it would allow minimalinquiry into defendant's selling of marihuana in 2002 as a prior bad act. Since the People did notindicate (as required by Ventimiglia) that they planned to use such proof in their directcase, no analysis was made as to whether the marihuana violation was relevant to a pertinentissue and, if so, whether the probative value outweighed the potential prejudice (see People vChaney, 298 AD2d at 619). However, at trial the prosecution introduced this evidence in itsdirect case. This was error. The People's assertion on appeal that this proof nevertheless fallswithin Molineux because it was "background information . . . necessary toestablish how defendant was able to remain unemployed and simply stay home" is without merit(see generally People v Resek, 3NY3d 385, 389-390 [2004]).
The effect of the error escalated when defendant attempted to explain the marihuana sale inhis testimony, resulting in protracted and prejudicial questioning in cross-examination regardinghis use of marihuana.[FN2]The prosecutor further engaged in unduly lengthy questioning of witnesses (and commentsduring summation) regarding defendant's failure to maintain employment as well as his strictapproach to discipline,[FN3]issues that were marginally relevant as [*4]background evidence,but were used in conjunction with his sale of marihuana to attempt to cast him as a bad person inthe eyes of the jury (see e.g. People v Blair, 90 NY2d 1003, 1004 [1997] [evidence ofprior bad conduct "may not be admitted solely to demonstrate a defendant's bad character"];People v Lewis, 69 NY2d 321, 325 [1987]). The cumulative effect of these errors cannotbe considered harmless in light of the proof at trial, which was not overwhelming (see Peoplev Crimmins, 36 NY2d 230, 241-242 [1975]). As such, reversal and a new trial is required.The remaining issues are academic.
Mercure, J.P., Malone Jr. and Kavanagh, JJ., concur. Ordered that the judgment is reversed,on the law and as a matter of discretion in the interest of justice, count two of the indictmentdismissed, and matter remitted to the County Court of Albany County for a new trial on theremaining counts of the indictment.
Footnote 1: The victim did not reach hereleventh birthday until nearly 20 months into the 27-month time frame of the second allegedperiod of course of sexual conduct.
Footnote 2: For example, after a series ofquestions regarding marihuana sales, the prosecutor asked, "Were you also buying marihuana forthe kids, too?" There was no good faith basis for asking this improper question, which couldonly serve to prejudice the jury against defendant on an issue that was not germane to theallegations against defendant.
Footnote 3: As for those errors that were notpreserved by a proper and timely objection (of which there were many), we exercise our interestof justice jurisdiction (see CPL 470.15 [6] [a]; People v Russell, 307 AD2d 385,387 [2003]). Indeed, we note that so many significant errors occurred without objection that, onthis record, defendant's ineffective assistance argument appears viable.