| People v Fernandez |
| 2013 NY Slip Op 03512 [106 AD3d 1281] |
| May 16, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vMarcos A. Fernandez, Appellant. |
—[*1] D. Holley Carnright, District Attorney, Kingston (Jason J. Kovacs of counsel), forrespondent.
Spain, J. Appeal from a judgment of the County Court of Ulster County(McDonough, J.), rendered December 20, 2011, upon a verdict convicting defendant ofthe crimes of sexual abuse in the first degree and endangering the welfare of a child.
In 2008, the victim disclosed to her mother that defendant, a male teenage relative,had sexually abused her on several occasions while visiting her grandparents' house inUlster County between August 2005 and the end of December 2005, when the victimwas eight years old and defendant was 17 (age 18 at Christmas 2005). Defendant residedin that house and was raised there by his aunt[FN1]and uncle, whom he referred to as his parents; the victim referred to them as hergrandparents. The abuse was alleged to have occurred during visits on weekends andholidays that coincided with family gatherings, when the victim's father drove her andher sisters from their residence in Orange County to visit her grandparents and family.Defendant was indicted and, after a jury trial, convicted of sexual abuse in the first andsecond degrees and endangering the welfare of a child, and acquitted of rape in the firstdegree and course of sexual conduct against a child in the first and second degreesalleged for the same time period. On [*2]appeal, a newtrial was ordered[FN2]based upon an error by the trial court in precluding testimony from the victim's familymembers regarding her reputation for truthfulness (74 AD3d 1379 [2010], affd17 NY3d 70 [2011]). After a second jury trial, defendant was again convicted of sexualabuse in the first degree and endangering the welfare of a child and sentenced to fourmonths of incarceration and 10 years of postrelease supervision on the top count.Defendant now appeals.[FN3]
Defendant's primary contention on appeal is that the jury's verdict is contrary to theweight of the credible evidence, pointing to perceived inconsistencies and weaknesses inthe victim's account of the abuse, her reputation for untruthfulness, and the claimedinherent unbelievability of her testimony that she was alone with and abused bydefendant numerous times in a small house filled with many relatives. In consideringdefendant's claim, we view the evidence in a neutral light and, since we find that anacquittal would not have been unreasonable, we must, "like the trier of fact below, 'weighthe relative probative force of conflicting testimony and the relative strength ofconflicting inferences that may be drawn from the testimony' " (People vBleakley, 69 NY2d 490, 495 [1987], quoting People ex rel. MacCracken vMiller, 291 NY 55, 62 [1943]; see People v Romero, 7 NY3d 633 [2006]). Given the lackof physical evidence or eyewitnesses, as is commonly true in sexual assaults, the victim'stestimony about the abuse stood in stark contrast to defendant's testimony denying, in allrespects, the victim's account of sexual contact, which presented a "classic credibilityissue" (People v Allen, 13AD3d 892, 894 [2004], lv denied 4 NY3d 883 [2005] [internal quotationmarks and citation omitted]); indeed, "[the victim's] credibility was the central issue forthe jury to resolve" (17 NY3d 70, 78 [2011]).
The victim, age 14 at trial, testified that on at least three occasions between Augustand December 2005 (she was not able to specify dates), when she was eight years old,she visited her grandparents' house on weekends and holidays and was alone naked withdefendant in his second floor bedroom. Each time, defendant moved a small nightstandto block the door and, after it was over and they were both dressed, defendant wouldcheck the hallway and, if clear, push her out of his room; she estimated that the incidentslasted from 5 to 60 minutes. On the first and third occasion, defendant got undressed andremoved her clothing, put her on his bed and touched or kissed every intimate part of herbody and put his penis in her vagina, mouth and "butt." She was lured into defendant'sbedroom the first time by the promise of gum and money in exchange for massaging orscratching his back.
On the second occasion, she recalled what she was wearing, that defendant removedher clothing and that she and defendant were naked under the covers, although she couldnot remember the sexual contact. She further related that her older sister, then age nine,interrupted the encounter when she knocked on the door and pushed the door open, anddefendant ran behind the door while the victim remained under the covers up to her neck;her sister asked what they were doing and why the television was off, and defendant saidhe was changing and that he had turned it off. The sister also testified, corroborating thatshe and the victim visited and stayed [*3]overnight morethan four times during the period in issue. She further related that one time she founddefendant and the victim alone in his bedroom and, when she opened the door, sheobserved the victim in defendant's bed under the covers with only her face exposed,defendant moved behind the door, his chest was naked (she could not see below thewaist), and he said he was changing. Her memory was that the television was on and thedoor was hard to open although she did not observe anything blocking the door, and shedid not "think anything" of it at the time. She also confirmed that she would sometimeshang out in defendant's bedroom and play games or listen to music with him. While therewere discrepancies in some of the details, they were fully explored and highlighted forthe jury, and it is "not uncommon for young children to be uncertain and eveninconsistent in their trial testimony" (People v Raymo, 19 AD3d 727, 728 [2005], lvdenied 5 NY3d 793 [2005]). The sister's testimony certainly supports, at the veryleast, the victim's account of being in defendant's bed and alone with him, as well as thecompelling inference that defendant had the opportunity to and actually committed thesexual abuse as described by the victim (see People v Bleakley, 69 NY2d at 495).
The victim further recounted that she first reported the sexual abuse to her cousinsand sister in the summer of 2007, and months later disclosed it to her mother and aunt.She delayed reporting defendant's conduct because she was scared of him—he hadtold her not to tell "or else"—and she feared she would not be believed or not beable to see her grandparents. The victim also recounted that defendant had hit her onetime when she yelled during the abuse, and other times during visits for which he was notpunished. The People presented a forensic psychologist who explained why children ofintrafamily sexual abuse continue to associate with their abusers and delay reporting. Oncross-examination, the victim conceded that she had not visited defendant's house inAugust 2005, she visited at least once in September 2005 and then over theThanksgiving and Christmas holiday weekends. The defense explored the victim'saccount as it emerged, beginning with the initial investigation in 2007 through the firsttrial in 2009 and at this 2011 trial, regarding the age at which the abuse began and thetotal number of incidents; the defense probed the victim regarding the frequencyof—and her ability to specifically recall—her visits to her grandparents'house in the period in issue in 2005, pointing out weaknesses and inconsistencies. On ourreview of her account, "we cannot say that [her] trial testimony was utterly incredible orinherently unbelievable" (People v Beauharnois, 64 AD3d 996, 999 [2009], lvdenied 13 NY3d 834 [2009]). Indeed, the inconsistencies went to issues ofcredibility and did not relate to the material elements of the crimes charged (seeid. at 998-999). Moreover, while the victim candidly conceded telling a policeinvestigator in 2007 (when she was 10) that she had "told lies before," this generalizedadmission was not particularly incriminating given her young age and the lack of anyevidence that she had lied to falsely accuse or harm others or ever on important matters.
Defendant testified, denying that any sexual contact of any nature had occurred; hepresented testimony of family and friends in part accounting for his activities during thevictim's visits, the timing of those visits and the number of relatives present. Defendant,as well as his father and aunt (who also lived there), testified that defendant was away inAugust 2005 and the victim did not visit in September or October 2005; she visited onlyat Thanksgiving, when defendant was with a group of friends for dinner with extendedfamily at his house and then left with friends returning around 1:00 a.m., and went tofriends' houses the next day; the victim and her family came for the afternoon only onChristmas Day to exchange gifts; and there were always a lot of relatives in the house onholidays. Defendant testified that he rarely allowed his younger relatives into hisbedroom, which was located across the hall from the bathroom used by everyone andnext to bedrooms of other family members. The aunt and father further testified [*4]that the victim had a reputation for dishonesty in theextended family and there was evidence that she had some difficulty getting along withher cousins and was often excluded.
The jury, having heard the contradictory testimony regarding, among other things,the frequency, timing and circumstances of the victim's visits to her grandparents' house,as well as her steadfast account that defendant had sexually abused her and defendant'sequally resolute denials, obviously credited her account. This was the second jury toconclude beyond a reasonable doubt that defendant had, in fact, subjected her to sexualcontact for the purpose of gratifying sexual desire (see Penal Law §§130.00 [3]; 130.65 [3]) and acted in a manner injurious to her welfare (see PenalLaw § 260.10 [1]). This conclusion was not contradicted by any compellingevidence (see People v Allen, 13 AD3d at 894), and we cannot conclude that theshortcomings in her testimony rendered it "so unworthy of belief as to be incredible as amatter of law" (People v Wright, 214 AD2d 759, 762 [1995], lv denied86 NY2d 805 [1995] [internal quotation marks and citation omitted]). Having heard thetestimony regarding the victim's reputation for truth and veracity (see 17 NY3d at76; People v Pavao, 59 NY2d 282, 290 [1983]), it was "for the jury to evaluatethe credibility of the character witnesses who testif[ied], and to decide how muchweight[, if any,] to give the views reported in their testimony" (17 NY3d at 76). The juryapparently was not persuaded by that testimony of witnesses with an arguable bias indefendant's favor (id. at 78). Mindful of the deference we accord to the jury's"opportunity to view the witnesses, hear the testimony and observe demeanor"(People v Bleakley, 69 NY2d at 495; People v Mitchell, 57 AD3d 1308, 1309-1310 [2008]), "wecannot conclude that the jury erred in crediting the victim's testimony over that ofdefendant or failed to give the evidence the weight it should be accorded" (People vAllen, 13 AD3d at 894; see People v Beauharnois, 64 AD3d at 999). Thus,the jury's verdict was supported by the weight of credible evidence and will not bedisturbed (see People vDanielson, 9 NY3d 342, 348 [2007]; People v Romero, 7 NY3d at 643;People v Bleakley, 69 NY2d at 495).
Finally, defendant argues that the denial of youthful offender status was an abuse ofdiscretion given that he had no prior or subsequent criminal history and had lived alaw-abiding life for four years since his 2007 arrest, was a college student with anexemplary academic, athletic and employment record, and has good moral character andreputation as attested to by numerous letters from family, friends and employers. "[T]hedetermination to grant youthful offender treatment rests within the discretion of thesentencing court and will not be disturbed absent a clear abuse of discretion" (People v Driggs, 24 AD3d888, 889 [2005]; see CPL 720.20 [1] [a]). Although defendant was aneligible youth (see CPL 720.10 [1], [2]), County Court considered all of therelevant factors, including the foregoing offered in mitigation and, as did the trial court atthe first trial, concluded that granting youthful offender treatment would not beappropriate. The court relied upon the nature of the crimes perpetrated against hiseight-year-old relative and his failure to accept responsibility for his conduct or toexpress genuine concern for its impact on the victim's well-being (see People vDriggs, 24 AD3d at 889; cf.People v Jeffrey VV., 88 AD3d 1159, 1160 [2011]). We discern no abuse ofdiscretion[FN4](see People v Boyce, 2AD3d 984, 987 [2003], lv denied 2 NY3d 796 [2004]). While defendantmaintains his [*5]innocence, two juries have found himguilty of sexually abusing the victim and two trial courts have determined youthfuloffender treatment to be inappropriate. Given the manipulative and repeated nature of hisabusive conduct, we decline defendant's request to exercise our discretion to grant himyouthful offender status (see CPL 470.15 [3] [c]; People v Jeffrey VV.,88 AD3d at 1160).
Peters, P.J., Stein and Garry, JJ., concur. Ordered that the judgment is affirmed, andmatter remitted to the County Court of Ulster County for further proceedings pursuant toCPL 460.50 (5).
Footnote 1: Defendant was adoptedby his aunt after his mother's death, when he was an infant.
Footnote 2: In that decision, thesexual abuse in the second degree conviction was dismissed as a lesser included offenseof sexual abuse in the first degree.
Footnote 3: This Court granted anorder staying execution of the judgment pending appeal.
Footnote 4: After the first trial, theProbation Department apparently recommended youthful offender treatment. Here, thepresentence investigation report recommended probation without incarceration, but madeno recommendation as to youthful offender treatment.