| People v Wagner |
| 2010 NY Slip Op 02875 [72 AD3d 1196] |
| April 8, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Russell F.Wagner, Appellant. |
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McCarthy, J. Appeal from a judgment of the County Court of Washington County(McKeighan, J.), rendered October 31, 2008, upon a verdict convicting defendant of the crimesof endangering the welfare of a child (two counts), unlawfully dealing with a child (two counts)and forcible touching.
Defendant was charged by a nine-count indictment with numerous crimes in connection withallegations that he provided alcohol to three minor females and engaged in sexual contact withthem. At the conclusion of trial, the jury acquitted defendant of sexual abuse in the first degree,criminal sexual act in the first degree and rape in the third degree, but convicted him ofendangering the welfare of a child (two counts), unlawfully dealing with a child (two counts) andforcible touching.[FN*]Defendant appeals.
The convictions were supported by the weight of the evidence. Three females testified [*2]that defendant regularly supplied them with alcohol while two were16 and one was 17 years old. Each victim testified that defendant touched or grabbed her breastsand they witnessed him doing the same thing to the others' breasts. One of defendant's ownwitnesses, a classmate of the victims, testified that she saw him grab the breasts of the otherminor females and he had grabbed her breasts as well. The jury could infer from his actions thatdefendant's intention in grabbing the victims' breasts was either for his sexual gratification or forthe purpose of degrading or humiliating the victims (see Penal Law § 130.52; People v Fuller, 50 AD3d 1171,1175 [2008], lv denied 11 NY3d 788 [2008]). Defendant basically argues thatinconsistencies in the victims' testimony makes them unworthy of belief, but the inconsistencieswere on minor details unrelated to the elements of the charges and none negated a finding ofguilt (see People v Conklin, 63AD3d 1276, 1277 [2009], lv denied 13 NY3d 859 [2009]; People v Scanlon, 52 AD3d 1035,1039 [2008], lv denied 11 NY3d 741 [2008]; see also People v Cecunjanin, 67 AD3d 1072, 1076 [2009]).Although the jury did not find that defendant had intercourse or oral sex with one victim, or thathe touched another victim's vagina, the jury could accept some of the victims' testimony whilerejecting other portions of it (see Peoplev Kuykendall, 43 AD3d 493, 495-496 [2007], lv denied 9 NY3d 1007 [2007]).The counts on endangering the welfare of a child and unlawfully dealing with a child were notduplicitous, as the endangering charges included allegations and proof concerning inappropriatesexual touching as well as supplying the minor victims with alcohol. Considering all of theproof, the verdict was not against the weight of the evidence.
The prosecutor did not violate County Court's pretrial ruling by questioning a witnessconcerning defendant's prior bad acts in Massachusetts. The pretrial ruling prohibited the Peoplefrom discussing any details of defendant's 1999 Massachusetts conviction. The People did notmention that conviction. Rather, the prosecutor merely asked follow-up questions of one of thevictims who testified that defendant provided her with alcohol and removed her clothing whilethey were on a trip to Massachusetts in approximately 2007. This questioning in no wayimplicated the pretrial ruling. Additionally, as the 2007 Massachusetts trip was first mentioned inresponse to defense counsel's questioning, defendant opened the door to further questions toexplore the details of that situation (see People v Melendez, 55 NY2d 445, 451 [1982]).
The prosecutor did not engage in misconduct during summation. Aside from oneinappropriate reference to a witness's grand jury testimony, which was cured by defensecounsel's objection and County Court's admonition that the jury disregard that statement, theprosecutor's statements on summation constituted fair comment on the evidence or reasonableresponses to defense counsel's summation (see People v Cherry, 46 AD3d 1234, 1237-1238 [2007], lvdenied 10 NY3d 839 [2008]; People v Grady, 40 AD3d 1368, 1374-1375 [2007], lvdenied 9 NY3d 923 [2007]).
Defendant received the effective assistance of counsel. Counsel successfully moved todismiss one count and presented a coherent defense that resulted in an acquittal of all threefelony counts (see People v Conklin, 63 AD3d at 1277). Defendant's allegations ofineffectiveness that relate to matters outside the record cannot be reviewed on appeal and aremore appropriately raised in a motion pursuant to CPL article 440.
Similarly, defendant's allegations concerning exculpatory information on his laptopcomputer, which he received back from the police after he was released from prison, are basedon non-record information and should be raised in a motion pursuant to CPL article 440. Wereject [*3]defendant's argument that he is entitled to a reversalbased on the People's failure to turn over information from cell phones that belonged todefendant and one victim. The police were in possession of the phones—which containedtext messages between defendant and one victim—and should have disclosed thesematerials. County Court appropriately dealt with this problem by granting an adjournment duringtrial. None of the messages reviewed during that adjournment were exculpatory, and some wereinculpatory. Defense counsel complained that some messages were erased and an expert mayhave been able to retrieve them, but the court reasonably refused to grant a further adjournmentbecause counsel had not contacted an expert to see if retrieval of deleted text messages was evenpossible. Although the prosecution should have known that the phones were in the policedepartment's possession and made efforts to review the messages for exculpatory information,defendant was not prejudiced by the People's actions in that regard (see People v Gragnano, 63 AD3d1437, 1443-1444 [2009]; see alsoPeople v Burroughs, 64 AD3d 894, 898 [2009], lv denied 13 NY3d 794 [2009]).
Lastly, based upon his conviction of forcible touching, defendant is required to register as asex offender and County Court was required to impose sex offender surcharges and fees(see Penal Law § 60.35 [1] [a] [iv]; § 130.52; Correction Law § 168-a[2] [b]; § 168-f).
Peters, J.P., Malone Jr., Kavanagh and Garry, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *: At the end of the People's proof,County Court granted defendant's motion to dismiss one count of endangering the welfare of achild based on the age of the minor.