| People v Galloway |
| 2012 NY Slip Op 02345 [93 AD3d 1069] |
| March 29, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Bruce M.Galloway, Appellant. |
—[*1] Nicole M. Duve, District Attorney, Canton (Jonathan L. Becker of counsel), forrespondent.
Malone Jr., J. Appeal from a judgment of the County Court of St. Lawrence County(Richards, J.), rendered August 17, 2010, upon a verdict convicting defendant of the crimes ofsexual abuse in the first degree (four counts) and sexual abuse in the second degree.
On December 11, 2008, based upon allegations that defendant had subjected two femalechildren, victim A (born in 1993) and victim B (born in 1996), to sexual contact, he was chargedby indictment with multiple counts of sexual abuse in the first degree and unlawfully dealingwith a child in the first degree. The People announced their readiness for trial 11 days later, butthe People thereafter informed County Court that they were not prepared to proceed to trial inlight of allegedly new information. As a result, the original indictment was superceded in July2009 by an indictment charging defendant with four counts of sexual abuse in the first degree andone count of sexual abuse in the second degree. Defendant thereafter unsuccessfully moved todismiss the superceding indictment on statutory speedy trial grounds. After a jury trial, defendantwas found guilty as charged and was subsequently sentenced to an aggregate prison term of eightyears, with two years of postrelease supervision for each conviction. Defendant appeals.
Initially, defendant's speedy trial motion was properly denied. The People filed the first [*2]declaration of trial readiness 94 days after the commencement ofthe criminal action, and County Court properly charged the People with 32 days, reflecting theamount of time between the withdrawal of the original declaration of trial readiness in July 2009and the second announcement of readiness in August 2009. That brought the total timechargeable to the People to 126 days, well within the six-month statutory time period (seeCPL 30.30 [1] [a]). Contrary to defendant's contention, the People's statement of readiness wasnot rendered illusory by the People's withdrawal of it in order to seek a superceding indictment(see People v Sinistaj, 67 NY2d 236, 240-241 [1986]; see also CPL 200.80 [ThePeople may seek a superceding indictment "any time before entry of a plea of guilty to anindictment or commencement of a trial thereof"]). Although the superceding indictmentcontained different dates of the alleged incidents, it was "directly derived" from the initialaccusatory instrument and, as such, it relates back to the earlier announcement of readiness (People v Farkas, 16 NY3d 190,193 [2011]; see People v Sinistaj, 67 NY2d at 241; People v Stone, 265 AD2d891, 892 [1999], lv denied 94 NY2d 907 [2000]).
Next, defendant claims that the convictions are not supported by the weight of the evidence.In conducting a weight of the evidence review, if a different verdict would not have beenunreasonable, we "must, like the trier of fact below, weigh the relative probative force ofconflicting testimony and the relative strength of conflicting inferences that may be drawn fromthe testimony" (People v Romero, 7NY3d 633, 643 [2006] [internal quotation marks and citations omitted]; see People v Danielson, 9 NY3d342, 348 [2007]). However, in doing so, "we accord great deference to the jury's conclusionsregarding the credibility of witnesses and the weight to be given their testimony" (People v Scott, 47 AD3d 1016,1017 [2008], lv denied 10 NY3d 870 [2008] [internal quotation marks and citationsomitted]).
Upon reviewing the record here, we are satisfied that the verdict is not against the weight ofthe evidence. For defendant to be found guilty of the crimes with which he was charged, it had tobe proven that defendant subjected both victim A and victim B to sexual contact when they wereless than 11 years old (see Penal Law § 130.65 [3]) and that defendant subjectedvictim A to sexual contact when she was less than 14 years old (see Penal Law §130.60 [2]). Victim A testified that defendant had touched her vagina two times, once inSeptember 2001 and once during her winter break during the 2005-2006 school year. After thesecond incident, victim A refused to visit with defendant for approximately two years. Victim Btestified that defendant twice touched her breasts and once fondled her buttocks when she was atdefendant's camp during the summer of 2006. Neither victim wavered in her trial testimony andother witnesses provided information that supported the victims' testimony, including defendant'sson, who stated that, during the two years that victim A refused to see defendant, he hadconversations with defendant in which defendant had, among other things, apologized andadmitted to going "over the line."[FN1]Although neither victim immediately disclosed the incidents of sexual contact, and even thoughdefendant was able to impeach their trial testimony with prior statements, their credibility is anissue for the jury to determine and we find no basis to disturb that determination (see People v Artis, 90 AD3d 1240,1240 [2011]; People v Wright, 88 AD3d [*3]1154, 1157[2011], lv denied 18 NY3d 863 [2011]). Contrary to defendant's contention, minorinconsistencies in various witnesses' testimony did not render the testimony incredible as a matterof law (see People v Hayden, 60AD3d 1155, 1157 [2009], lv denied 12 NY3d 854 [2009]; see also People v Calabria, 3 NY3d80, 82 [2004]).
Next, contrary to defendant's contention, County Court did not improperly allow the Peopleto admit what he mistakenly characterizes as prompt outcry evidence through their examinationof the victims' mothers. Notably, the testimony is not prompt outcry testimony because neither ofthe mothers testified on direct examination that the victims had disclosed the sexual abuse tothem. Further, the testimony of these witnesses did not constitute improper bolstering. Instead,the testimony of the victims' mothers "was relevant to the investigative process . . .and provided background information to explain why the victim[s] had not reported the abuse tothe authorities when it occurred" (Peoplev Manning, 81 AD3d 1181, 1183 [2011]).
Finally, although defendant contends that he was denied his right to a fair trial based on theselection of two jurors and due to prosecutorial misconduct during opening and closingstatements, his failure to make appropriate objections renders these claims unpreserved for ourreview (see People v Kelly, 65AD3d 714, 715 [2009], lv denied 13 NY3d 860 [2009]).[FN2]Defendant's remaining contentions have been considered and found to be without merit.
Mercure, A.P.J., Rose, Spain and McCarthy, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1: Contrary to defendant'scontention, these statements were properly admitted as inculpatory party admissions (see People v Cruz, 41 AD3d 893,896 [2007], lv denied 10 NY3d 933 [2008]; People v Swart, 273 AD2d 503, 505[2000], lv denied 95 NY2d 908 [2000]).
Footnote 2: Defendant's general objectionsduring the People's summation were insufficient to preserve defendant's current arguments withregard to such (see People v Harris, 98 NY2d 452, 491 n 18 [2002]; People vDien, 77 NY2d 885 [1991]).