| People v Brown |
| 2014 NY Slip Op 01213 [114 AD3d 1017] |
| February 20, 2014 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vRichard Brown, Appellant. |
—[*1] Kristy L. Sprague, District Attorney, Elizabethtown (Michael P. Langey of counsel),for respondent.
Egan Jr., J. Appeal from a judgment of the County Court of Essex County (Meyer,J.), rendered September 22, 2011, upon a verdict convicting defendant of the crime ofsexual abuse in the first degree (five counts).
Defendant was charged in an eight-count indictment with various crimes stemmingfrom his alleged sexual abuse of the victim—the six-year-old daughter of hislive-in girlfriend—in or about late February 2009 and early March 2009. Thevictim and her brother resided with their biological father in a trailer park located in theTown of Ticonderoga, Essex County; on weekends, the children would spend nightswith their mother at defendant's trailer, which was located a short distance away. Duringtwo of these overnight visits, the victim testified, defendant molested her while they wereon a couch in the living room of defendant's trailer. At the close of the People's case,County Court dismissed counts 3, 5 and 7 of the indictment, and the jury convicteddefendant of the remaining five counts of sexual abuse in the first degree. Defendantthereafter was sentenced to an aggregate prison term of 12 years followed by 10 years ofpostrelease supervision, prompting this appeal.
Initially, we reject defendant's assertion that the verdict is against the weight of theevidence. Insofar as is relevant here, a defendant is guilty of sexual abuse in the firstdegree when he or she subjects a person who is less than 11 years old to sexual contact(see Penal Law § 130.65 [3]). Sexual contact, in turn, is defined as "anytouching of the sexual or other intimate [*2]parts of aperson for the purpose of gratifying sexual desire of either party" (Penal Law §130.00 [3]; see People vBush, 57 AD3d 1119, 1119 [2008], lv denied 12 NY3d 756 [2009]),and the case law makes clear that "[a]n inference of sexual gratification may be drawnfrom the conduct of a defendant who has intimate contact with a child to whom he or sheis not related" (People vCook, 112 AD3d 1065, 1066 [2013]; see People v Byron, 85 AD3d 1323, 1325 [2011], lvdenied 17 NY3d 857 [2011]; People v Fuller, 50 AD3d 1171, 1175 [2008], lvdenied 11 NY3d 788 [2008]).
Here, the record reflects that the victim was six years old when she was molested bydefendant, and the victim testified—at length and in detail—regarding thetwo separate instances of abuse. Specifically, the victim recounted the manner in whichdefendant touched her vagina and buttocks—first while she was lying on theflowered couch in defendant's trailer and then while she was lying on the blue couch indefendant's trailer—and described how defendant placed her hand upon, andcaused her to stroke, his penis and warned her not to tell anyone. Although a certifiednurse practitioner testified that her examination of the victim disclosed "no physicalevidence of sexual abuse," this Court recently observed that the lack of such physicalevidence, which is not uncommon in sexual assaults, essentially presents a credibilityissue for the jury to resolve (seePeople v Fernandez, 106 AD3d 1281, 1282-1283 [2013]). In this regard,whatever inconsistencies existed between the young victim's statements to lawenforcement, her testimony before the grand jury and her testimony at trial were fullyexplored upon cross-examination and, in our view, neither "undermine[d] her testimonyin any meaningful respect" (People v Bush, 57 AD3d at 1120) nor "render[ed]her testimony incredible as a matter of law" (People v Byron, 85 AD3d at 1325;see People v Galloway, 93AD3d 1069, 1071-1072 [2012], lv denied 19 NY3d 996 [2012]; see alsoPeople v Fernandez, 106 AD3d at 1283-1284; People v Simonetta, 94 AD3d 1242, 1244 [2012], lvdenied 19 NY3d 1029 [2012]). Accordingly, we are satisfied that the underlyingconvictions are supported by the weight of the evidence.
That said, we nonetheless are constrained to conclude that defendant is entitled to anew trial. During the direct examination of the victim's mother, the mother wasquestioned regarding any discussions she and defendant may have had regarding a youngfemale who, for purposes of this decision, we will identify as "Jane." Over defensecounsel's objection, the victim's mother testified that, on "[q]uite a few" occasions,defendant called her Jane while she and defendant were having sex. The prosecutor thenasked the victim's mother whether she ever had a conversation with defendantconcerning his use of the name Jane in this context, in response to which the victim'smother testified that defendant admitted that, while Jane was 13 years old and "wassleeping next to him in bed . . . he took his penis out and put it inside of herunderwear and came against her vagina." Defense counsel promptly objected, arguingthat such testimony was both highly prejudicial and had been elicited in violation ofCounty Court's prior Ventimiglia and Molineux rulings, andunsuccessfully moved for a mistrial.[FN1]
It is beyond dispute that evidence of a defendant's uncharged crimes or prior bad actscannot be admitted solely for the purpose of proving criminal propensity (see People v Cass, 18 NY3d553, 559 [2012]; People vArafet, 13 NY3d 460, 464-465 [2009]). Rather, "evidence of uncharged crimesor prior bad acts may be admitted where they fall within the recognized Molineuxexceptions—motive, intent, absence of mistake, common plan or scheme andidentity—[*3]or where such proof is inextricablyinterwoven with the charged crimes, provide[s] necessary background or complete[s] awitness's narrative" (People vJohnson, 106 AD3d 1272, 1274 [2013], lv denied 21 NY3d 1043[2013] [internal quotation marks and citations omitted]; see People v Molineux,168 NY 264, 293 [1901]; People v Bourne, 46 AD3d 1101, 1103 [2007], lvdenied 10 NY3d 762 [2008]), and the trial court further determines that the probativevalue of such evidence outweighs its prejudicial effect (see People v Tinkler, 105AD3d 1140, 1143 [2013], lv denied 21 NY3d 1020 [2013]; People v Hernandez, 89 AD3d1123, 1124 [2011], lv denied 20 NY3d 1099 [2013]). Here, the record doesnot reflect that the People sought any sort of ruling from County Court regarding theadmissibility of defendant's uncharged crime/prior bad act before eliciting such testimonyfrom the victim's mother on their case-in-chief (see People v Ventimiglia, 52NY2d 350, 361-362 [1981]),[FN2]nor does the record reveal that the People made any attempt to "identify some issue, otherthan mere criminal propensity, to which the evidence [was] relevant" (People vHolmes, 260 AD2d 942, 943 [1999], lv denied 93 NY2d 1020 [1999]; compare People v Rhodes, 91AD3d 1185, 1186 [2012], lv denied 19 NY3d 966 [2012]).
More to the point, the record before us fails to establish that the unchargedcrime/prior bad act at issue, which implicated defendant engaging in sexual contact withanother underage victim, falls within any of the recognized Molineux exceptions(see People v Buskey, 45AD3d 1170, 1173-1174 [2007]; compare People v Sorrell, 108 AD3d 787, 791-792 [2013];People v Jones, 101 AD3d1482, 1483 [2012], lv denied 21 NY3d 1017 [2013]; People v Justice, 99 AD3d1213, 1215 [2012], lv denied 20 NY3d 1012 [2013]; People v Brown, 39 AD3d886, 887-888 [2007], lv denied 9 NY3d 873 [2007]; People v Higgins, 12 AD3d775, 778 [2004], lv denied 4 NY3d 764 [2005]), and we are persuaded thatwhatever probative value such proof may possess "is far outweighed by its obviousprejudice to defendant" (People v Buskey, 45 AD3d at 1174). Finally, althoughthe jury's verdict is not against the weight of the evidence, we cannot say that the proofof defendant's guilt was overwhelming (see People v Arafet, 13 NY3d at 467;People v Crimmins, 36 NY2d 230, 241-242 [1975]) and, therefore, we cannotdeem the error in this regard to be harmless (see People v Buskey, 45 AD3d at1174; compare People vNewkirk, 75 AD3d 853, 856 [2010], lv denied 16 NY3d 834 [2011]).Accordingly, we find that the admission of such proof operated to deprive defendant of afair trial.
Defendant concedes that his alternative ground for dismissal—that the Peopleimproperly elicited testimony on their case-in-chief relative to his refusal to provide asworn statement to the police—was not preserved by a timely objection and, inlight of our reversal on the Ventimiglia/Molineux issue, we decline to exerciseour interest of justice jurisdiction to take corrective action on this point. Finally, as thismatter is being remitted for a new trial, we need not address defendant's claim that thesentence imposed was harsh and excessive.
Lahtinen, J.P., Stein and McCarthy, JJ., concur. Ordered that the judgment isreversed, on the law, and matter remitted to the County [*4]Court of Essex County for a new trial.
Footnote 1: County Court did,however, provide a curative instruction.
Footnote 2: The People's presentassertion—that such testimony "was not directly solicited by [the]prosecution"—is belied by the trial transcript.