| People v Stone |
| 2015 NY Slip Op 08205 [133 AD3d 982] |
| November 12, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vSamantha E. Stone, Appellant. |
Aswad & Ingraham, Binghamton (Thomas A. Saitta of counsel), forappellant.
Gerald F. Mollen, District Attorney, Binghamton (Veronica M. Krause of counsel),for respondent.
Devine, J. Appeal from a judgment of the County Court of Broome County (Cawley,J.), rendered November 15, 2013, upon a verdict convicting defendant of the crime ofpredatory sexual assault against a child.
The victim (born in 1998) and her sister (born in 1999) were in the care of defendantuntil 2007. Both came forward in 2011 with claims that defendant had repeatedlysexually abused them as preteen children and, as a result, defendant was charged in anindictment with two counts of predatory sexual assault against a child, one for each girl.Following a jury trial, defendant was convicted of count 1, the count relating to thevictim. County Court imposed a prison sentence of 12 years to life, and defendant nowappeals.
Defendant first asserts that legally sufficient evidence did not establish that she wasat least 18 years of age when the abuse occurred, an element of predatory sexual assaultagainst a child (see Penal Law § 130.96). While this argument is notpreserved because defendant failed to advance it in her trial motion to dismiss, ourweight of the evidence review nevertheless requires confirmation that all of the elementsof the crime for which she was convicted was proven beyond a reasonable doubt (see People v Hawkins, 11NY3d 484, 492 [2008]; People v Chaffee, 30 AD3d 763, 764 [2006], lvdenied 7 NY3d 846 [2006]).
Here, the victim testified to dozens of incidents wherein defendant inserted hertongue, [*2]fingers and various foreign objects inside thevictim's vagina. The victim's sister was present for some of those incidents and confirmedthat they had occurred. The victim further testified that the bulk of those incidentsoccurred after she turned six or seven, meaning that they would have occurred no earlierthan 2005. Defendant's current spouse, in turn, testified that defendant was born in 1979,making her well over 18 years of age when the abuse occurred. The fact that defendantcalled her spouse to testify is of no moment, as "a defendant who does not rest after thecourt fails to grant a motion to dismiss at the close of the People's case . . .proceeds with the risk that he [or she] will inadvertently supply a deficiency in thePeople's case" (People v Kirkpatrick, 32 NY2d 17, 21 [1973], appealdismissed 414 US 948 [1973]; see People v Zarrelli, 144 AD2d 819, 820[1988], lv denied 73 NY2d 1024 [1989]). The jury credited the foregoingtestimony and, according deference to that determination, we find that the verdict wasnot against the weight of the evidence (see People v Jackson, 128 AD3d 1181, 1182 [2015];People v Chaffee, 30 AD3d at 764).
Far more troublesome is the admission by County Court of testimony by the victim'sstepmother and grandmother regarding her disclosures of abuse under the prompt outcryexception to the hearsay rule.[FN*] "A witness'[s] trial testimony ordinarilymay not be bolstered with pretrial statements" (People v McDaniel, 81 NY2d 10,16 [1993] [citations omitted]; see People v Rosario, 17 NY3d 501, 511 [2011]), but,"[u]nder the established 'prompt outcry' exception to the hearsay rule . . . ,'evidence that a victim of sexual assault promptly complained about the incident isadmissible to corroborate the allegation that an assault took place' " (People v Allen, 13 AD3d892, 894 [2004], lv denied 4 NY3d 883 [2005], quoting People vMcDaniel, 81 NY2d at 16; see People v Rosario, 17 NY3d at 511). Theprompt outcry exception only permits testimony as to the making of a complaint, anddoes not extend to hearsay evidence regarding the "details of the incident[s]" related by avictim (People v Rice, 75 NY2d 929, 932 [1990]; see People v Rosario,17 NY3d at 511).
County Court erroneously allowed testimony regarding details of the abuse that thevictim allegedly relayed to her grandmother, but any argument with regard to theadmission of that proof is unpreserved for our review (see People v Stearns, 72 AD3d1214, 1218 [2010], lv denied 15 NY3d 778 [2010]; People v Pace,145 AD2d 834, 836-837 [1988], lv denied 73 NY2d 894 [1989]). The issue ofwhether the outcry itself was prompt is preserved, however, and is no less troubling.
Whether a complaint is sufficiently prompt so as to fall within the exception is not amatter of precision and depends upon the facts of a given case (see People vRosario, 17 NY3d at 512-513; People v Lapi, 105 AD3d 1084, 1087 [2013], lvdenied 21 NY3d 1043 [2013]). That being said, "courts traditionally have requiredthe complaint to be made 'at the first suitable opportunity' " (People v Cridelle, 112 AD3d1141, 1143 [2013], quoting People v O'Sullivan, 104 [*3]NY 481, 486 [1887]), and "[a]ny significant delay must beadequately explained" (People vShepherd, 83 AD3d 1298, 1300 [2011], lv denied 17 NY3d 809 [2011];see People v Allen, 13 AD3d at 895). Here, the victim did not disclose the abuseuntil 2011, four years after she and her sister were placed in the custody of her father andthe abuse had ended. The victim testified that she waited so long to disclose the abusebecause defendant had threatened to kill her if she told anyone, but that threat was madeduring a supervised visit between the victim and defendant. The visitation had ceasedwell before the disclosures were made, and the victim had neither seen nor spoken todefendant since 2009. We are left, in other words, with disclosures that were made fouryears after the abuse ended and over two years after the victim last interacted withdefendant (see People v Allen, 13 AD3d at 895; cf. People v Caban, 126 AD3d808, 808-809 [2015]).
The People suggest that this prolonged delay can be attributed to the facts that thevictim had sustained psychological trauma and suffered from a mild neurologicalimpairment. Research indeed "suggest[s] that withholding a complaint may not beunusual," but that fact is not dispositive in assessing whether a complaint was madepromptly (People v Allen, 13 AD3d at 896; see People v McDaniel, 81NY2d at 16-17). To hold otherwise would run against the very purpose of the exception,namely, to address "the tendency of some jurors to doubt the victim in the absence of" aprompt complaint of abuse (People v McDaniel, 81 NY2d at 17). As for thevictim's neurological condition, it suffices to say that no proof in the record suggests thatit would have compelled her to remain silent for such a long period of time. Thus, giventhe absence of any adequate explanation for the victim's prolonged delay in disclosingthe abuse, her disclosures cannot be described as prompt outcries, and the hearsaytestimony regarding them should not have been admitted into evidence (see People v Rosario, 68 AD3d600, 601 [2009], affd 17 NY3d 501 [2011]; People v Workman, 56 AD3d1155, 1157 [2008], lv denied 12 NY3d 789 [2009]; People v Allen,13 AD3d at 896). Inasmuch as the evidence of guilt in this case was notoverwhelming—indeed, the verdict hinged on the question of whether the victimwas credible—we cannot say that the erroneous admission of this bolsteringhearsay was harmless (see People v Allen, 13 AD3d at 896). Thus, defendantmust be given a new trial upon count 1 of the indictment.
In the interest of ensuring that the second trial proceeds smoothly, we address theadditional claim of defendant that County Court erred in precluding examination of anindividual who supervised visitation between the victim and her father in 2001 and 2002.According to defendant, that individual would have testified that the father routinelybrought a camera to visitation in order to document any injuries that the victim may havesustained while in the care of defendant. Defendant, provided that she had a good faithbasis for doing so, was entitled to present extrinsic proof that would establish a motiveon the part of the victim to fabricate the claims of abuse (see People v Spencer, 20NY3d 954, 956 [2012]; People v Hudy, 73 NY2d 40, 56-57 [1988]). Theproffered evidence, however, would only have established that the father sought todocument actual physical abuse a decade before the accusations of sexual abuse weremade, and County Court properly precluded it as being too remote and speculative tosuggest a motive to fabricate on the part of the victim (see People v Brown, 128AD3d 1183, 1187 [2015]; People v Bott, 234 AD2d 625, 626-627 [1996],lv denied 89 NY2d 1009 [1997]).
The remaining contention raised by defendant is that the victim should not have beenpermitted to testify via closed-circuit television. Defendant's argument in that regard isacademic, however, as the issue will not arise upon retrial due to the age of the victim(see CPL 65.00 [1], [2]; 65.20 [13]).
In conclusion, we feel obliged to address an issue that is not raised by defendant.Count 1 of the indictment alleges that defendant committed the crime of predatory sexualassault against a child as a result of her actions between 2003 and 2007, but the crimeitself was only created on June 23, 2006 (see L 2006, ch 107,§§ 2, 10). Defendant never apprised County Court of this defect,which would have alerted the People to the problem and permitted an opportunity [*4]to amend the indictment so that the allegations were limitedto events that transpired after the crime was created (see CPL 200.70 [1]). Thegrand jury minutes are not before us, but the trial testimony reveals no obvious bar toseeking such an amendment, as the victim testified that the abuse occurred throughoutthe period that she was living with defendant (see e.g. People v Lupo, 92 AD3d 1136, 1137-1138 [2012]).In light of these peculiar circumstances, the defect in the indictment appears to be afactual, nonjurisdictional one (see People v Garcia, 79 AD3d 1248, 1249 [2010], lvdenied 16 NY3d 797 [2011]; People v Fehr, 45 AD3d 920, 923 [2007], lv denied10 NY3d 764 [2008]; comparePeople v Bethea, 61 AD3d 1016, 1017 [2009]). Nevertheless, it is one that canand should be resolved before a second trial.
Lahtinen, J.P., Garry and Lynch, JJ., concur. Ordered that judgment is reversed, onthe law, and matter remitted to the County Court of Broome County for a new trial oncount 1 of the indictment.
Footnote *:Inasmuch as the Peopleonly sought the admission of this testimony under the prompt outcry exception to thehearsay rule, we cannot, and do not, decide whether it could have been admitted for anonhearsay purpose (see Peoplev Muhammad, 17 NY3d 532, 547 [2011]; see also Fitch v Shubert Theat.Co., 174 App Div 229, 233-234 [1916]; compare People v Ludwig, 24 NY3d 221, 232 [2014]).