| People v Kamp |
| 2015 NY Slip Op 05231 [129 AD3d 1339] |
| June 18, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vDavid L. Kamp, Appellant. |
Brownstone, P.A., Orlando, Florida (Patrick Michael Megaro of counsel), forappellant.
John M. Muehl, District Attorney, Cooperstown (Michael F. Getman of counsel), forrespondent.
McCarthy, J.P. Appeal from a judgment of the County Court of Otsego County(Burns, J.), rendered November 15, 2013, upon a verdict convicting defendant of thecrime of criminal sexual act in the third degree (six counts).
Defendant was charged by indictment with criminal sexual act in the third degree(six counts), stemming from allegations that he engaged in oral sexual conduct with a16-year-old (hereinafter the victim) on six separate occasions. After trial, the jury founddefendant guilty as charged. Defendant was thereafter sentenced to an aggregate term of18 years in prison, to be followed by 10 years of postrelease supervision. Defendant nowappeals.
County Court's Molineux ruling was not an abuse of discretion. Defendantargues that, given that the charged crimes only related to his alleged oral sexual conduct,the court erred in allowing evidence that defendant touched the victim's breasts andgenitals with his hands and that he stated that he intended to have intercourse with her.Considering that this contested evidence related to the sexual abuse of the same victimduring the months preceding and including the months that the charged crimes werealleged to have taken place, that evidence was relevant for the nonpropensity purpose ofproviding "necessary background information on the nature of the relationship betweendefendant and the victim, . . . plac[ing] the charged conduct in context" (People v Leeson, 12 NY3d823, 827 [2009] [internal quotation marks and citation omitted]; see People v Livrieri, 125AD3d 579, 579 [2015]; People v Nash, 87 AD3d 757, 758-759 [2011]). Further,given the court's limiting instructions and the particular relevance of the evidence incontextualizing the victim's delayed reporting of defendant's alleged abuse, the court didnot [*2]abuse its discretion in finding that the prejudicialeffect of the evidence did not outweigh its probative value (see People v Leeson,12 NY3d at 826-827; People v Livrieri, 125 AD3d at 579; People v Nash,87 AD3d at 758-759).
The verdict was not against the weight of the evidence. As charged, the jury wasrequired to find proof that defendant, "[b]eing [21] years old or more, . . .engage[d] in oral sexual conduct . . . with [the victim when she was] lessthan [17] years old" (Penal Law § 130.40 [2]). Oral sexual conduct "meansconduct between persons consisting of contact between . . . the mouth andthe vulva or vagina" (Penal Law § 130.00 [2] [a]). The victim testified thatdefendant, on at least six occasions, had the victim take off her clothes before heproceeded to lick her breasts and vagina. She further testified that defendant directed hernot to share these facts with the victim's mother and that he asserted that people wouldnot understand his sexual relationship with her. A clinical social worker who specializesin child victims of sexual abuse testified regarding the concept of grooming—aprocess through which an adult perpetrator prepares a child victim for the perpetrator'sdesired abuse through progressive stages of sexual contact. In his testimony, defendantdenied the victim's allegations of his oral sexual conduct, but acknowledged that, formedical reasons, he had licked his fingers and touched the victim's vagina on threedifferent occasions and had also rubbed medical cream on the victim's body in locationsthat included underneath the victim's breasts.
As the jury was faced with conflicting testimony regarding defendant's physicalrelationship with the victim, it was within its province—after viewing thewitnesses, hearing their testimony and observing their demeanor—to credit thevictim's testimony and reject defendant's testimony as incredible (see People v Romero, 7 NY3d633, 644 [2006]; People vDesmond, 118 AD3d 1131, 1133 [2014], lv denied 24 NY3d 1002[2014]). Granting appropriate deference to that credibility determination, the verdict wasnot against the weight of the evidence (see People v Foulkes, 117 AD3d 1176, 1177 [2014], lvdenied 24 NY3d 1084 [2014]; People v Mercado, 113 AD3d 930, 932-933 [2014], lvdenied 23 NY3d 1040 [2014]; People v Fernandez, 106 AD3d 1281, 1285-1286[2013]).
Further, although defendant sought adjournments prior to and during the sentencinghearing, he did not apprise County Court of his current contentions that either his right tothe counsel of his choice or CPL 390.50 (2) entitled him to suchadjournments.[FN*]Defendant therefore failed to preserve those arguments for our review (see People v Van Demps, 118AD3d 1146, 1147 [2014], lv denied 23 NY3d 1061 [2014]; People v Secore, 102 AD3d1057, 1058 [2013], lv denied 21 NY3d 1019 [2013]), and we decline toexercise our interest of justice jurisdiction.
Finally, we reject defendant's contention that his sentence was harsh and excessive.Defendant exploited a position of trust that he had established with the victim and tookefforts, in directing the victim not to report the abuse, that served both his purposes ofevading justice and of allowing himself further opportunity to sexually abuse the victim.Considering these facts, as well as the fact that defendant received less than themaximum statutory sentence, we find no abuse of discretion or extraordinarycircumstances warranting a reduction of his sentence (see People v Card, 115 AD3d1007, 1009 [2014], lv denied 23 NY3d 961 [2014]; People v Jaeger, 96 AD3d1172, 1175 [2012], lv denied 19 NY3d 997 [2012]).
[*3] Defendant's remaining contentions are withoutmerit.
Egan Jr., Devine and Clark, JJ., concur. Ordered that the judgment is affirmed.
Footnote *:It was defendant'scounsel of choice that made the initial motion for the adjournment that failed to appriseCounty Court that the motion was based on counsel's inability to appear on the datepreviously scheduled for sentencing.