| People v Olson |
| 2013 NY Slip Op 07085 [110 AD3d 1373] |
| October 31, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v ChadOlson, Appellant. |
—[*1] D. Holley Carnright, District Attorney, Kingston (Jason J. Kovacs of counsel), forrespondent.
Spain, J. Appeals (1) from a judgment of the County Court of Ulster County(Williams, J.), rendered May 30, 2012, upon a verdict convicting defendant of the crimesof course of sexual conduct against a child in the second degree, sexual abuse in the firstdegree and endangering the welfare of a child (two counts), and (2) from a judgment ofsaid court, rendered June 8, 2012, which resentenced defendant following saidconvictions.
In early 2011, two young girls (hereinafter victim A and victim B) who did not knowone another separately disclosed to their mothers that defendant had subjected them tosexual contact when he lived with their respective families while in relationships withtheir mothers. Defendant was indicted and, at his jury trial, victim A testified that duringthe period of time in which defendant lived with her family, at various locations in UlsterCounty between January 2005 and August 2008 when she was between the ages of 9 and12, defendant touched or rubbed her vaginal area over clothing 15 to 20 times for periodsranging from seconds to minutes. Victim B testified that between November 2008 andJanuary 2009, when she was 10 years old, defendant touched her breasts and upper thighand near her vaginal area. The victims testified that the abuse ended when defendantmoved out and their mothers discontinued contact with him, and that they delayeddisclosing the abuse because they were fearful of him for themselves and their mothers.Victim B disclosed the abuse to her mother in January 2011, and then to the police. Thiscame after defendant had initiated contact with her mother concerning a post [*2]breakup child born to the mother, who believed defendantto be the father. When victim B's mother thereafter made contact with victim A's motherthrough a relative, victim A was questioned and disclosed the abuse. Defendant testified,admitting he lived with the victims' families but denying all of the allegations of sexualcontact. Defendant was convicted of course of sexual conduct against a child in thesecond degree as to victim A, sexual abuse in the first degree as to victim B, and twocounts of endangering the welfare of a child, one count with respect to each victim.Sentenced to an aggregate prison term of 14 years, defendant now appeals. Finding nomerit to his contentions, we affirm.
Defendant initially contends that the verdict is contrary to the weight of credibleevidence, arguing that the victims' accounts were not believable, were undermined bytheir delayed disclosure even after defendant discontinued contact with their mothers,and lacked physical corroborative evidence. While a different verdict would not havebeen unreasonable given that the verdict turned on credibility assessments between eachvictim and defendant, upon our independent review and weighing of the conflictingtestimony in a neutral light and deferring to the jury's determination to credit the victims'accounts, we cannot agree that the jury failed to give the evidence its deserving weight;"the jury was justified in finding defendant guilty beyond a reasonable doubt" on allcounts and their verdict was not against the weight of the credible evidence (People v Danielson, 9 NY3d342, 348 [2007]; see People v Bleakley, 69 NY2d 490, 495 [1987]). VictimA, age 15 at trial, testified to specific instances—including locations (the garageand living room), the surrounding circumstances and regarding the first incident whenshe was alone watching television in the living room—in which defendant madesexual contact with her vagina through clothing when she was under the age of 13. Sheexplained to the jury her reasons for delaying disclosure, even after her family moved outof state, until her mother directly asked her after speaking with victim B's mother andtelling her of victim B's allegations, including her reasons for fearing defendant; hermother's testimony established that raising the question even after the passage of timemade her very upset. The fact that her disclosure of the extent and details of the abuse,which remained consistent, came about gradually over time through questioning did notundermine the believability of her account, particularly given her testimony that she wasvery shaken by the police questioning and continued to fear defendant.
Victim B, age 13 at trial, testified that defendant made sexual contact with his handson her breasts and upper thighs in her bedroom or while her mother was napping; sherelayed specific episodes at various locations in the house or defendant's van, such aswhen she was sick on the couch in the living room and on trips to specific stores in thevan. She explained that she was scared of him because he had abused her and her mother,physically and verbally. The timing of her delayed disclosure is understandable, givendefendant's reappearance—after a lengthy absence since the last abuse—inher mother's life following the birth of a child. Indeed, testimony of the male policeinvestigator who interviewed victim B in February 2011 after that disclosure reflectedthat she was still very nervous and shaken by the abuse and had great difficultydiscussing it or disclosing details until a female investigator was assigned. Herexplanation that she did not initially disclose that defendant had touched her breasts orvagina because she was "ashamed of it" and "felt violated" was not, as defendant asserts,incredible. The expert testimony of a clinical psychologist offered by the People aidedthe jury's understanding of the reasons that children delay disclosure, particularly whensexual abuse occurs in family settings. The jury rationally rejected claims that the victims(or their mothers), who did not know one another at the time of the disclosures, hadfabricated their accounts of abuse by defendant (see People v Sorrell, 108 AD3d 787, 789-790 [2013]; People v Hayes, 104 AD3d1050, 1054 [2013]).[*3]
Next, we perceive no error or abuse of discretionin County Court's balanced Sandoval compromise (see People v Hayes,97 NY2d 203, 208 [2002]; People v Grady, 40 AD3d 1368, 1370-1371 [2007], lvdenied 9 NY3d 923 [2007]). The court permitted inquiry regarding defendant'scriminal contempt conviction, upon his guilty plea, for violating an order of protectionfollowing an arrest for assault in 2008, which satisfied that assault charge; the courtprecluded questions about the underlying facts or identity of the victim of thosecrimes,[FN*]as well as about his prior convictions for aggravated harassment, petit larceny andunlawful possession of marihuana. Defendant's intentional violation of prior court ordersbore on his honesty, truthfulness and willingness to advance his own interests at theexpense of society, all bearing on his testimonial credibility (see People v Hayes,97 NY2d at 207; People v Quiller, 298 AD2d 712, 713 [2002], lv denied99 NY2d 618 [2003]; People v Williams, 256 AD2d 661, 662 [1998], lvdenied 93 NY2d 981 [1999]; People v Quesnel, 238 AD2d 725, 726-727[1997], lv denied 90 NY2d 896 [1997]). Defendant is correct that impeachmentquestioning about a prior arrest, which is merely an accusation and not evidence of guilt,is not proper (see People v Morrison, 194 NY 175, 178 [1909]; People vMcKinley, 39 AD2d 749, 749 [1972]; People v Harvey, 34 AD2d 857, 858[1970]). However, the focus of the Sandoval ruling was to allow impeachment ofdefendant on the fact that he had admitted—by his guilty plea to criminalcontempt—to violating a lawful court order of protection that followed his arrestfor an underlying assault, and did not focus on his arrest itself as impeachment evidence.The prosecutor, in cross-examining defendant, asked only once about the arrest as thegenesis of the order of protection, and did not imply that defendant hadcommitted—or should be disbelieved because of—the assault. It was alsomade clear for the jury that defendant had never been convicted of that assault charge,which was satisfied by the criminal contempt plea. In our view, any error was harmless(see People v Grant, 7NY3d 421, 424 [2006]; People v Boodrow, 42 AD3d 582, 585 [2007]).
We also find that County Court did not err or abuse its discretion in declining toorder a Frye hearing (see Frye v United States, 293 F 1013 [1923]) withrespect to the expert testimony proffered by the People. Testimony regarding child abuseaccommodation syndrome (hereinafter CAAS) has long been held to be admissible to aidthe jury's understanding of, among other things, why children might delay reportingsexual abuse, when offered by a qualified expert who has not met the child in issue anddoes not offer an opinion regarding credibility or whether abuse has occurred; suchtestimony is not novel and, thus, the court did not err in declining to hold a Fryehearing (see People vSpicola, 16 NY3d 441, 465, 467 [2011], cert denied 565 US —,132 S Ct 400 [2011]; People v Wesley, 83 NY2d 417, 422 [1994]; People v Bassett, 55 AD3d1434, 1436-1437 [2008], lv denied 11 NY3d 922 [2009]). The victims'protracted delay in disclosing the abuse was a significant issue at trial; indeed, a maindefense premise was that the delay indicated that the allegations were not true and, thus,the expert testimony was properly received (see People v Maggio, 70 AD3d 1258, 1260-1261 [2010],lv denied 14 NY3d 889 [2010]).
With regard to defendant's claim that he was improperly denied an additionalindefinite [*4]adjournment to retain another expert onCAAS, defendant had well over a week's notice of the People's intent to offer a CAASexpert and additional time prior to the start of trial to obtain an expert, he was granted arequested short adjournment and the testimony of the People's expert at a prior unrelatedtrial was turned over to the defense. In addition, counsel did not, at any point, indicate toCounty Court that he had retained an expert who would be unavailable for the upcomingscheduled trial, but would be available at a further date, so as to warrant an adjournmentfor that purpose. In fact, the defense had obtained an expert as of the pretrial hearings,who testified at this trial. Under these circumstances, we discern no abuse of discretion inthe denial of an additional adjournment (see People v Gragnano, 63 AD3d 1437, 1443-1444 [2009],lv denied 13 NY3d 939 [2010]; cf. People v Spears, 64 NY2d 698,699-700 [1984]).
Finally, we cannot conclude that County Court's imposition of consecutive maximumsentences was harsh and excessive so as to warrant a reduction in the interest of justice(see CPL 470.15 [6] [b]). The court properly considered all relevant factors,including defendant's lack of remorse, lengthy criminal history, and the manipulative andegregious abuse of trust underlying these crimes. While the sentence imposed wassignificantly longer than that offered prior to trial, that offer had been extended based onthe wishes of these young victims to be spared the ordeal of testifying and implicitlyreflected the People's uncertainty, prior to trial, that the victims would be willing orpsychologically able to testify in open court; this disparity alone does not establish thatdefendant was punished for going to trial, and he gave up any right he had to that offereddisposition by proceeding to trial (see People v Van Pelt, 76 NY2d 156, 160[1990]; People v Pena, 50 NY2d 400, 412-413 [1980], cert denied 449US 1087 [1981]; People vLakatosz, 59 AD3d 813, 816 [2009], lv denied 12 NY3d 917 [2009]).Moreover, the record, including the girls' subsequent trial testimony and heartbreakingvictim impact statements offered at sentencing, reflects the deep, devastating and lastingimpact from defendant's abuse of them while acting as a father figure, to an extent notfully known at the time of the plea offer, justifying the imposition of a much greatersentence. This included the severity of the long-term psychological and emotional harmand trauma suffered by these victims, which caused both girls to subsequently engage inserious physical self-harm—with one of the victims repeatedly being hospitalizedfor suicide attempts—and, years later, both suffered from self loathing and blame,lasting fear of retribution, and serious self-esteem damage. Thus, under the particularfacts of this case, where the record contains no support for defendant's claim that thelengthier sentence imposed after trial was a result of vindictiveness or retaliation forexercising his right to trial, we cannot conclude that County Court "placed undue weightupon defendant's ill-advised decision to reject the very favorable plea bargain andproceed to trial" (People v Morton, 288 AD2d 557, 559 [2001], lv denied97 NY2d 758 [2002], cert denied 537 US 860 [2002]).
Peters, P.J., Stein and McCarthy, JJ., concur. Ordered that the judgments areaffirmed.
Footnote *: Indeed, it was onlydefendant's direct testimony that suggested that the identity of the victim of thatassault—and the one in whose favor the order of protection wasissued—was victim A's mother. Defendant's claims regarding the relevance of theorder of protection were not preserved by objection at trial (see CPL 470.05 [2]).