| People v Sorrell |
| 2013 NY Slip Op 05010 [108 AD3d 787] |
| July 3, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vGarfield J. Sorrell, Appellant. |
—[*1] Andrew J. Wylie, District Attorney, Plattsburgh (Nicholas J. Evanovich of counsel),for respondent.
Spain, J. Appeal from a judgment of the Supreme Court (Lawliss, J.), rendered June7, 2010 in Clinton County, upon a verdict convicting defendant of the crimes ofpredatory sexual assault against a child and endangering the welfare of a child.
Following a jury trial, defendant was convicted as charged of predatory sexualassault against a child and endangering the welfare of a child for repeatedly subjecting achild to sexual conduct between June 1, 2008 and February 28, 2009, when she was agesfive and six and he was ages 25 and 26. The child first disclosed the abuse, whichoccurred before and during the time she was in first grade (the 2008-2009 school year),to defendant's wife in September 2009. The wife, defendant and child lived together inthe home where the abuse occurred. After her disclosure, the child revealed in varyingdetail to her pediatrician, a Child Protective Service caseworker (hereinafter CPScaseworker) and State Police investigators that defendant had repeatedly subjected her tospecified acts of sexual abuse. At trial, the child, who was seven years old at that time,testified under oath that when no one else was home, defendant would show her "badmovies" for adults on his computer, usually in the living room, in which adults removedtheir clothing and "touch[ed] privates." After viewing these pornographic movies,defendant would take her to the back room of the residence, where they removed theirclothing, and defendant would ask her what she would like to do from the pornographicmovie; after she "pick[ed] one," they would "start doing it." The child described thatwhile they did "different [*2]things" each time, defendantsubjected her to acts that constituted sexual intercourse, touched her vagina with his handand mouth, made contact between his penis and her vagina "almost all the time,"compelled her to touch his penis with her hand and once with her mouth, and had the doglick her vagina. Afterward, they would get dressed and go into the bathroom where thechild, as taught by defendant, manually stimulated his exposed penis until he ejaculated,which she described and demonstrated for the jury. Defendant testified, denying that heever had any sexual contact with the child and claiming that his wife had coached thechild. Defendant was sentenced to 25 years to life for the predatory sexual assaultconviction, an A-II felony, and a concurrent term of one year for the endangeringconviction, a misdemeanor. Defendant now appeals.
The crime of predatory sexual assault against a child, as charged here to the jury,required the People to prove that defendant committed the crime of course of sexualconduct against a child in the first degree (see Penal Law § 130.96); thatis, that defendant, being over age 18, for a period "not less than three months induration," engaged in "two or more acts of sexual conduct, which include[d] at least oneact of sexual intercourse [or] oral sexual conduct" with a child under age 13 (Penal Law§ 130.75 [1] [b]). Defendant challenges the legal sufficiency and weight of theevidence. We find no merit to either argument.
Viewing the evidence in the light most favorable to the People, legally sufficientevidence was adduced to establish that defendant perpetrated the charged sexual conductover a period of three months or more (see People v Danielson, 9 NY3d 342, 349 [2007]). Thechild's testimony established that defendant engaged in two or more acts of sexualconduct, indeed vastly more than that, which included innumerable acts of sexual contactand at least one act of sexual intercourse or oral sexual conduct (see Penal Law§ 130.00 [1], [2] [a]; [3]). The child testified that the abuse occurred "[a]lmostevery day, [but] not every single day." Further, she testified that defendant beganshowing her pornographic movies on his desktop computer and subjected her to sexualcontact prior to first grade, during the summer of 2008, and that it continued during theensuing school year. The abuse continued after defendant's desktop computer brokedown, which the evidence established occurred in 2009, and certainly no earlier thanSeptember or October 2008.[FN1]The child's account was consistent with her testimony that the abuse started before aspecific event in which the wife found the dog licking the child's vagina, which the wifetestified happened in June 2008. The foregoing was more than sufficient to establish thatthe sexual conduct repeatedly occurred over a period of three months or more.[FN2]
Likewise, while an acquittal "would not have been unreasonable . . . thejury was justified in finding the defendant guilty beyond a reasonable doubt" (Peoplev Danielson, 9 NY3d [*3]at 348). Defendant focuseson inconsistencies in the child's testimony regarding the onset of the abuse, details ofsexual conduct to which she testified at trial that she had not previously provided, thetiming of the observed incident with the dog, and her description of the various bodypositions they assumed. While the child vacillated somewhat prior to and at trial withrespect to whether the abuse began before or during first grade, she ultimately adhered toher testimony that it started before first grade, which was corroborated by the wife'sobservation of the child and the dog. Further, when defendant made admissions to theCPS caseworker and a State Police investigator, he remarked that the sexual contact hadoccurred around the time when he caught his wife "out having an affair," which hetestified occurred on June 1, 2008. The wife also testified that, during that period of time,she left the child alone with defendant more often. Even assuming that the abuse ceasedonce defendant's desktop computer stopped working, more than the requisite three-monthperiod was credibly established.
Moreover, the jury was justified in crediting the testimony of the child and the wife,and we give great deference to that determination (see People v Hayes, 104 AD3d 1050, 1054 [2013]; People v Izzo, 104 AD3d964, 966-967 [2013]). Indeed, the child was a very articulate, believable witnesswhose straightforward account of the abuse was detailed and remarkably consistentregarding defendant's pattern of showing her pornographic movies and then directing herto act out specific sexual conduct. The medical testimony of a nurse practitioner withextensive experience in the examination of girls for sexual abuse evaluations establishedthat the child had been vaginally penetrated, leaving "gross irregularities" in her hymenalrim with "complete transections" (interruptions) and scarring from tears, which the childcould not have caused herself. Defendant's interest in sexual activity with preteen girlswas confirmed by the forensic evaluation of his computer, which was owned and usedonly by defendant during the relevant period, and which revealed extensive Internetsearches for such images.
Moreover, when confronted by police with the child's detailed allegations, defendantultimately admitted that all of her allegations were true (except those pertaining to thedog), he realized he did "inappropriate things" and knew it was "wrong." He specificallyadmitted that he had touched the child's vaginal area with his hands in the back room,while she was naked, after they watched pornography, but claimed it only occurred onetime. He thereafter signed a written statement admitting that, on one occasion, he hadtouched the child's vagina.[FN3]At trial, he testified that he made these highly incriminating admissions and signed awritten statement after Miranda warnings, which he understood, in order to avoidarrest and allow him to return home to the child, which defies all reason and credibility.His assertion that his wife had coached the [*4]child doesnot withstand scrutiny. The recovered images of child pornography were downloadedonto his computer in March 2008, more than a year earlier, and the suggestion that sheplanted them to later frame him was not believable. Importantly, the pediatrician, StatePolice investigator and CPS caseworker all testified that the wife never prompted thechild or answered for her, and the child testified that she was never told how to testify orwhat to say. The record is simply devoid of any proof supporting defendant's claim thatthe child's allegations and testimony were, to any extent, fabricated or coached.
Next, contrary to defendant's claim, Supreme Court's balanced and carefullycircumscribed Molineux ruling did not deprive him of a fair trial. In response tothe People's pretrial proffers,[FN4]the court issued a written decision, later revised, allowing police testimony describingthree images depicting children engaged in sexual activity (but not the recovered imagesthemselves), which had been downloaded or viewed on defendant's desktop computer inMarch 2008. The court also allowed evidence that a large number of Internet searchterms—mostly pertaining to sexual activity with preteen girls—were enteredbetween March 2008 and August 2008 on defendant's desktop computer. Also admittedwas testimony that pornographic videos and images of adults were downloaded orviewed on defendant's desktop and laptop computers during the indictment period. Theadmissibility of the foregoing was contingent on the wife testifying, as she did, that shenever downloaded, searched for or viewed them. The court disallowed, as tooprejudicial, testimony regarding bestiality images, videos and search terms found on bothof defendant's computers, or Internet "banners" (advertisements) that popped up ondefendant's computer because they were not within the user's control.[FN5]
Evidence that adult pornography was downloaded on defendant's computer wasadmissible to corroborate the child's testimony that defendant compelled her to watch andselect [*5]activities from such videos prior to engaging insexual conduct, and was reflective of defendant's intent and motive (see People v Dorm, 12 NY3d16, 19 [2009]; People vShofkom, 63 AD3d 1286, 1287-1288 [2009], lv denied 13 NY3d 799[2009], appeal dismissed 13 NY3d 933 [2010]; People v Higgins, 12 AD3d775, 778 [2004], lv denied 4 NY3d 764 [2005]). This evidence was also"inextricably interwoven with the charged crimes, provide[d] necessary background[and] complete[d] [the child's] narrative" (People v Tarver, 2 AD3d 968, 969 [2003]; see People v Poquee, 9 AD3d781, 782 [2004], lv denied 3 NY3d 741 [2004]). The presence of childpornography and related search terms on defendant's computers prior to and during theindicted time period was highly relevant and probative of material, disputed issues attrial, not only to establish defendant's intent and motive for committing sexual acts of thisnature against a young child, but also to establish the absence of mistake or accident,given that the sexual contact must have been for purposes of sexual gratification(see Penal Law § 130.00 [3]; People v Cass, 18 NY3d 553, 559-560 [2012]; People vHiggins, 12 AD3d at 778). While intent can often be inferred from the sexual actitself (see People v Vargas, 88 NY2d 856, 858 [1996]; People v Buskey, 45 AD3d1170, 1174 [2007]), here, defendant claimed to the police investigator and the CPScaseworker that much of the sexual contact and the child's knowledge occurredaccidentally. The foregoing was, thus, admissible to prove that defendant's chargedsexual contact was not accidental or mistaken but, rather, was intentional and sexual(see People v Dorm, 12 NY3d at 19; People v Irvine, 52 AD3d 866, 867-868 [2008], lvdenied 11 NY3d 737 [2008]; People v Poquee, 9 AD3d at 782; People vYagunoff, 266 AD2d 723, 725 [1999], lv denied 94 NY2d 886 [2000]) andmotivated by his unusual sexual interest in young children. Supreme Court carefullyconsidered the prejudicial effect of the evidence, limited or excluded much of it,including the actual images and videos, and provided numerous contemporaneous andappropriate limiting instructions. We cannot conclude that the court abused its discretionin finding that the probative value of the admitted evidence outweighed the potential forundue prejudice (see People v Cass, 18 NY3d at 560 and n 3; People v Jones, 101 AD3d1482, 1483 [2012]). Finally, the People, as required, alerted the court and defendant,in advance, of the evidence sought to be admitted and the permissible, nonpropensitypurposes for which it would be introduced at trial; extended arguments were heard on therecord and no formal hearing beyond that was necessary (see People v Holmes,260 AD2d 942, 943 [1999], lv denied 93 NY2d 1020 [1999]).
With regard to defendant's contention that the People failed to abide Supreme Court'sMolineux ruling by eliciting descriptive testimony pertaining to five images ofchild pornography downloaded on defendant's desktop computer in March 2008, ratherthan the three images contemplated by the court's ruling, the issue is unpreserved, as noobjection was raised to the testimony. In any event, the clear import of the court's revisedMolineux ruling is that such images were relevant and probative and, given thedescribed similarity in content and date of the two additional images, we find that thetestimony did not violate the intent of the court's Molineux ruling.
We further find that Supreme Court did not err in failing to continue to respond tojury notes after the jury indicated it had rendered a verdict. The jury's verdict was takenwithout objection from counsel and, thus, any claims are unpreserved that the court erredeither in failing to inquire of the jury whether it wanted to hear the remainder of thechild's testimony or in not responding to a second note (see People v Starling, 85NY2d 509, 516 [1995]). In any event, the court rightfully concluded that, by handing upa note stating that it had rendered a verdict prior to the court's full response to itsinquiries, the jury had resolved its questions and was no longer in need of the requestedinformation (see People vCornado, 60 AD3d 450, 451 [2009], lv denied 12 NY3d 913 [2009]; People v Albanese, 45 AD3d691, 692 [2007], lv denied 10 NY3d 761[*6][2008]; People v Quintana, 262 AD2d 101, 101[1999], lv denied 94 NY2d 865 [1999]). We further find that the verdict was notthe product of undue delay (see People v Albanese, 45 AD3d at 692) and that thecourt followed proper procedure (see CPL 310.30; People v O'Rama, 78NY2d 270, 276-279 [1991]).
Next, upon review of the record as a whole, we find that the prosecutor did notengage in a pervasive pattern of flagrant misconduct so as to require reversal ofdefendant's conviction (seePeople v Wright, 88 AD3d 1154, 1158 [2011], lv denied 18 NY3d 863[2011]; People v Hunt, 39AD3d 961, 963-964 [2007], lv denied 9 NY3d 845 [2007]). Defensecounsel's objections were sustained to the prosecutor's questions of defendant oncross-examination, which were neither flagrant nor substantially prejudicial (seePeople v Wright, 88 AD3d at 1158). While the exact start and end dates of thesexual abuse was a sharply disputed issue at trial, we agree that it was inappropriate forthe prosecutor in summation to state that she was "sorry if the little girl couldn't tell youexactly what date [defendant] stopped raping her" and that the search terms reflect thatdefendant "likes little libidos," but no objections were raised (see People vHarris, 98 NY2d 452, 491 n 18 [2002]). Moreover, we do not find that these fleetingreferences were so inflammatory as to deprive defendant of a fair trial (see People v Nelson, 68 AD3d1252, 1255 [2009]).
While essentially conceding that defendant was meaningfully represented throughoutmost of the trial, defendant argues that "a few critical errors by defense counsel" deprivedhim of a fair trial, requiring reversal. When the People attempted to introduce the child'sgrand jury testimony into evidence, defense counsel stipulated, incorrectly, that the childhad testified at the grand jury to penile penetration, apparently to prevent the admissionof the entire testimony. Given that defense counsel had repeatedly elicited for the jurythat the child had not provided this description at the grand jury proceedings,[FN6]we cannot conclude that counsel's stipulation—while puzzling—was soegregious and prejudicial as to deprive defendant of a fair trial (see People v Turner, 5 NY3d476, 480 [2005]; People vCaban, 5 NY3d 143, 152 [2005]). Moreover, counsel made appropriate pretrialmotions, successfully raised objections throughout trial and presented a cogent, althoughultimately unpersuasive, defense. Viewed in totality, defendant received meaningfulrepresentation (see People vEdwards, 96 AD3d 1089, 1092 [2012], lv denied 19 NY3d 1102[2012]).
Lastly, in view of the deplorable and grievous sexual abuse and harm inflicted upona child in his care at such a very young age, and defendant's unspeakable breach of trust,we do not find that Supreme Court's imposition of the maximum sentence warrants areduction in the [*7]interest of justice.
Rose, J.P., Stein and Garry, JJ., concur. Ordered that the judgment is affirmed.
Footnote 1: The wife testified thatdefendant's desktop computer broke in January or February 2009, while defendanttestified it broke in September or October 2008.
Footnote 2: Defendant's challengeto the legal sufficiency of the evidence presented to the grand jury is precluded given thatthe judgment of conviction is based upon legally sufficient trial evidence (seeCPL 210.30 [6]; People vSmith, 4 NY3d 806, 808 [2005]).
Footnote 3: According to thetestimony, defendant attempted, in the same interview, to inconsistently minimize ordeny his sexual conduct and its frequency, to retract his admissions, to explain away thechild's knowledge of sexual acts and pornographic movies, to suggest the child hadaccidentally observed his penis or him masturbating, and that it was possible that therehad been inadvertent sexual contact. He also denied having any pornography in thehouse, having Internet access, showing pornography to the child or having a computeruntil two weeks earlier. The police investigator testified that she only includedadmissions that defendant did not minimize or retract during the interview in defendant'swritten statement.
Footnote 4: State Police forensicinvestigators with the computer crime unit recovered over 2,500 adult pornographicimages and videos on defendant's computers, 112 child erotica images, 16 of which werechild pornography, 20 images and 37 videos of bestiality, mostly with dogs, and over 100preteen sex-related search terms.
Footnote 5: Supreme Court alsoruled that the People could elicit testimony concerning 13 additional images of childpornography found on unallocated space on defendant's desktop computer, provided thatall those who had access to the computer, prior to and after defendant received it inJanuary or February 2008, testify that they did not download the images. Testimonyestablished that deleted digital information goes to unallocated space on a computer'shard drive and may be overwritten—in whole or in part—when computermemory is needed. Because some of the digital information in these deleted files hadbeen overwritten, it was not possible for the forensic computer examiner to determinewhen these images were acquired, last viewed or deleted. The People made the decisionprior to trial that they would not elicit testimony related to those undated images, andthey did not do so.
Footnote 6: At trial, withoutobjection, the child used her finger and ear to demonstrate that defendant inserted hispenis into her vagina. On cross-examination, the child conceded that when shedemonstrated this at the grand jury proceedings, she only touched the outside of her earwith her finger (although she also testified at trial that she did not remember that earlierdemonstration). On redirect, she adhered to her testimony that defendant's penis wentinto her vagina and, on re-cross-examination, she was pressed about why she had notpreviously told that to the grand jury, the State Police investigator or the CPScaseworker.