| People v Hemingway |
| 2011 NY Slip Op 04773 [85 AD3d 1299] |
| June 9, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Geoffrey M.Hemingway, Appellant. |
—[*1] Andrew J. Wylie, District Attorney, Plattsburgh (Jaime A. Douthat of counsel), forrespondent.
Kavanagh, J. Appeal from a judgment of the County Court of Clinton County (McGill, J.),rendered January 27, 2009, upon a verdict convicting defendant of the crimes of sexual abuse inthe first degree (three counts) and endangering the welfare of a child.
In May 2008, defendant was charged by indictment with sexual abuse in the first degree (sixcounts) and endangering the welfare of a child (one count), stemming from allegations that hesexually assaulted the victim (born in 1995), who lived next door to him in a trailer park. After ajury trial, a verdict was rendered convicting defendant of sexual abuse in the first degree (threecounts) and endangering the welfare of a child, and acquitting him of the remaining charges. Hewas subsequently sentenced to aggregate terms of imprisonment totaling 12 years, plus 10 yearsof postrelease supervision. Defendant now appeals.
Defendant initially claims that his convictions for sexual abuse in the first degree are notsupported by the weight of the credible evidence because the victim's testimony, in addition tobeing uncorroborated, is materially inconsistent with prior statements she made regarding theseincidents and had been called into question by testimony given by other witnesses who appearedon behalf of defendant at trial. In essence, the victim claimed that on numerous occasions duringa 28-month period that began in June 2005, defendant subjected her to illicit sexual contact. The[*2]jury's verdict contains two convictions based on the victim'stestimony that defendant, on two separate occasions, used force to subject her to sexual contact(see Penal Law § 130.65 [1]), while the third is based on her claim that defendantsubjected her to sexual contact when she was less than 11 years old (see Penal Law§ 130.65 [3]).
Contrary to defendant's claim, the victim's testimony regarding his contact with her wascorroborated by other evidence admitted at trial. In that regard, we refer to testimony given by thevictim's father and defendant's sister-in-law, both of whom described the victim as being visiblyupset at a time when she claimed that defendant had sexually assaulted her, and recounted how,upon inquiry, the victim, albeit reluctantly, told them what defendant had allegedly done to her.The father's testimony is particularly compelling in terms of establishing the intimate nature ofdefendant's relationship with his daughter.[FN1]In it, he testified to going to defendant's trailer and, upon entering, seeing defendant suddenly exitfrom the bedroom and make "a mad dash to get to the bathroom." The father said that, momentslater, the victim came out of defendant's bedroom with "her hair all messed up." When viewed inconnection with this evidence, the victim's testimony was not "so incredible as to be unworthy ofbelief" (People v Reynolds, 81AD3d 1166, 1167 [2011]) and provided ample support for the jury's verdict as it relates tothree of the four charges for which defendant now stands convicted (see People v Danielson, 9 NY3d342, 348 [2007]; People v Bleakley, 69 NY2d 490, 495 [1987]; People vReynolds, 81 AD3d at 1167; Peoplev King, 79 AD3d 1277, 1278 [2010]; People v Battease, 74 AD3d 1571, 1575 [2010], lv denied15 NY3d 849 [2010]).
However, we agree with defendant that even if the jury fully embraced the victim'stestimony, it did not provide a legally sufficient basis for concluding that defendant used force tohave sexual contact with her as alleged in count six of the indictment, and defendant's convictionfor that charge must be reversed (see Penal Law § 130.65 [1]).[FN2]As to that charge, the People were required to prove that defendant used forcible compulsion tohave sexual contact with the victim. Forcible compulsion involves either the use of "physicalforce" or "a threat, express or implied, which places [the victim] in fear of immediate death orphysical injury" (Penal Law § 130.00 [8] [a], [b]) in an effort to force the victim to submitto a defendant's advances. And, in determining whether an implied threat existed that was legallysufficient to constitute forcible compulsion, an inquiry must be made "into what a victim feared adefendant might have done if he or she did not comply," and "must consider all relevant factorsinclud[ing] the age of the victim, the relative size and strength of the defendant and victim, andthe nature of the defendant's relationship to the victim" (People v Porter, 82 AD3d 1412, 1413 [2011] [internal quotationmarks and citations omitted]; see People v Thompson, 72 NY2d 410, 416 [1988]; People v Clairmont, 75 AD3d 920,[*3]921 [2010], lv denied 15 NY3d 919 [2010]; People v Maggio, 70 AD3d 1258,1258-1259 [2010], lv denied 14 NY3d 889 [2010]; People v Chapman, 54 AD3dat 508-509). Here, as to this particular charge, the victim does not allege that defendant usedforce or expressly threatened her during this encounter; instead, she acknowledged going todefendant's trailer of her own accord and entering his bedroom where she laid down on the bedbecause she wanted to be with him. She indicated that defendant followed her into the bedroom,exposed himself and then engaged in inappropriate sexual contact with her. She admitted notresisting his advances and stated that she went to the bedroom of his trailer because she wantedto "fool around" with him. Even taking into account the victim's age, her prior contact withdefendant and the expert testimony introduced by the People on this issue, defendant's convictionof this particular charge must be reversed because this evidence did not provide a legallysufficient basis that he used force, either expressed or implied, to have sexual contact with thevictim (see People v Fuller, 50AD3d 1171, 1175 [2008], lv denied 11 NY3d 788 [2008]).
Defendant also argues that the victim's trial testimony rendered some of the chargescontained in the indictment duplicitous and that his conviction for endangering the welfare of achild must be reversed because it is a lesser included offense of sexual abuse in the first degree.Contrary to defendant's contention, endangering the welfare of a child is not a lesser includedcharge of sexual abuse in the first degree. To obtain a conviction for endangering the welfare of achild, the People must prove that defendant "knowingly act[ed] in a manner likely to be injuriousto the physical, mental or moral welfare of a child less than [17] years old" (Penal Law §260.10 [1]), an element not required in a prosecution for sexual abuse (see Penal Law§ 130.35 [1], [3]; People vBeauharnois, 64 AD3d 996, 1001 [2009], lv denied 13 NY3d 834 [2009]; see also People v Scott, 67 AD3d1052, 1055 [2009], affd 16 NY3d 589 [2011]). As for defendant's claim regardingduplicity, no such objection was made during the trial and, as a result, this issue has not beenpreserved for our review (see People v Battease, 74 AD3d at 1574; People v Shofkom, 63 AD3d1286, 1288 [2009], lv denied 13 NY3d 799 [2009], lv dismissed 13 NY3d933 [2010]; People v Tomlinson, 53AD3d 798, 799 [2008], lv denied 11 NY3d 835 [2008]).
Defendant was not, as he claims, denied the effective assistance of counsel. Not only was heacquitted on three of the most serious charges contained in the indictment, but his counselthroughout the trial put forth a defense consistent with defendant's innocence and, in particular,provided meaningful representation by the manner in which he conducted the delicate and oftendifficult task of cross-examining a child who claimed to have been the victim of a sexual assault(see People v Benevento, 91 NY2d 708, 714 [1998]; People v Baldi, 54 NY2d137, 146 [1981]; People v Elwood,80 AD3d 988, 990 [2011]; People v Battease, 74 AD3d at 1575-1576). Finally,considering the nature of the conduct for which defendant stands convicted and the impact it hashad and will inevitably have on this victim,[FN3]the sentence imposed was not harsh and excessive (see People v King, 79 AD3d at 1280;People v Sabin, 73 AD3d 1390,1391 [2010], lv denied 15 NY3d 809 [2010]).
Mercure, J.P., Rose, Lahtinen and McCarthy, JJ., concur. Ordered that the judgment ismodified, as a matter of discretion in the interest of justice, by reversing defendant's convictionof sexual abuse in the first degree under count six of the indictment; said count dismissed and thesentence imposed thereon vacated; and, as so modified, affirmed.
Footnote 1: Defendant's conviction for theconduct that was the subject of the father's testimony must be reversed (count six) for reasonsthat are totally unrelated to the credibility of his testimony.
Footnote 2: While defendant's challenge tothe legal sufficiency of this particular charge has not been preserved, based upon our review ofthe record, we nevertheless exercise our interest of justice jurisdiction (see CPL 470.15[6]; People v Bruno, 63 AD3d1297, 1299 [2009], lv denied 13 NY3d 858 [2009]; People v Chapman, 54 AD3d 507,508 [2008]).
Footnote 3: Defendant also had a priorconviction of forcible touching in 2002.