| People v Farnham |
| 2016 NY Slip Op 01356 [136 AD3d 1215] |
| February 25, 2016 |
| Appellate Division, Third Department |
[*1](February 25, 2016)
| The People of the State of New York, Respondent, v Gene Farnham, Appellant. |
Justin C. Brusgul, Voorheesville, for appellant, and appellant pro se.
P. David Soares, District Attorney, Albany (Brittany L. Grome of counsel), forrespondent.
Clark, J. Appeal from a judgment of the Supreme Court (Lamont, J.), renderedNovember 9, 2012 in Albany County, upon a verdict convicting defendant of the crimesof predatory sexual assault against a child and endangering the welfare of a child (twocounts).
In November 2011, defendant (born in 1960) was charged in a five-count indictmentwith the crimes of predatory sexual assault against a child (two counts), endangering thewelfare of a child (two counts) and tampering with a witness in the fourth degree,stemming from allegations that he sexually assaulted a six-year-old child (hereinafter thevictim) and urged someone not to appear at the grand jury as directed to by subpoena.Defendant thereafter moved to, among other things, dismiss the indictment, arguing thatthe evidence before the grand jury was legally insufficient to support the charged crimes.Supreme Court partially granted the motion by dismissing the tampering with a witnesscharge and, following a jury trial, defendant was convicted of the remaining fourcharges.
Thereafter, pursuant to defendant's CPL 330.30 motion to set aside the verdict,Supreme Court dismissed one of the two counts of predatory sexual assault against achild on the ground that the evidence was legally insufficient to support the verdict onthat count. Defendant was thereafter sentenced to 25 years to life in prison for hisconviction of predatory sexual assault against a child, to run concurrently with twoone-year terms of incarceration for each count of endangering the welfare of a child.Defendant appeals.
[*2] As an initial matter,defendant's argument regarding the legal sufficiency of the People's evidence isunpreserved for our review inasmuch as he failed to make a specific motion to dismiss atthe close of the People's evidence (see People v Hawkins, 11 NY3d 484, 492 [2008]; People v Briggs, 129 AD3d1201, 1202 [2015], lv denied 26 NY3d 1038 [2015]). However, given that adifferent verdict would not have been unreasonable, we will nonetheless endeavor to"evaluate the adequacy of the evidence as to each element of the crimes for which[defendant] was convicted as part of our weight of the evidence review" (People v Launder, 132 AD3d1151, 1151 [2015]; seePeople v Danielson, 9 NY3d 342, 348-349 [2007]).
The crime of predatory sexual assault against a child requires the People to prove thatdefendant, being 18 years old or more, committed the crime of rape in the first degreeand that the victim was less than 13 years old (see Penal Law§ 130.96; People vBeauharnois, 64 AD3d 996, 1000 [2009], lv denied 13 NY3d 834[2009]). As relevant here, "[a] person is guilty of rape in the first degree when he or sheengages in sexual intercourse with another person . . . [w]ho is less than[11] years old" (Penal Law § 130.35 [3]). " 'Sexual intercourse' hasits ordinary meaning and occurs upon any penetration, however slight" (Penal Law§ 130.00 [1]). In order to convict defendant of endangering the welfare of achild, the People had to prove that defendant "knowingly act[ed] in a manner likely to beinjurious to the physical, mental or moral welfare of a child less than [17] years old"(Penal Law § 260.10 [1]). Focusing his argument largely on the credibilityof the victim, defendant contends that, other than the victim's own testimony, the trialwas devoid of any evidence of sexual abuse and, therefore, the weight of the evidencedoes not support his conviction for these crimes. We disagree and affirm.
At trial, the victim testified that she was eight years old, having been born inSeptember 2003. The victim further testified that, on the day of her sixth birthday partyin September 2009, defendant brought her to a storage unit where they "did the adultsecret thing." Among other details, she explained that defendant put her on top of adresser in the storage room, without her pants on, and pulled out his "private" from hiszipper, and then put his "private" into her "private" while he was standing up. Later thatsame day after the guests had left her birthday party, the victim told her mother whatdefendant did to her in the storage unit. According to the victim, her mother questioneddefendant about the victim's allegation but he denied any wrongdoing.[FN*]
The victim further vividly testified that she and defendant did the "adult secret thing"three or four additional times at his home while he was babysitting her. The victim statedthat defendant would put his "private" in her "private" while she was laying on top ofhim in his bedroom. She stated that this would hurt her, that "bubbles would come outhis private when he squeezed it," and that defendant would then take her into thebathroom, "wipe [her] private" with a washcloth and, afterwards, they would watchmovies. The victim explained that she kept what defendant was doing a secret for aperiod of time because, among other things, defendant "spoiled" her by giving her lots oftoys and buying her a pet dog. The victim finally disclosed the abuse to her grandmotherin August 2011. The grandmother then immediately informed the victim's mother who, inturn, called Child Protective Services, prompting an investigation.
Additional testimony presented by the People's witnesses demonstrated thatdefendant frequently had access to the victim during the time period in question, that hefrequently bought her gifts, that he rented a storage unit that comported with thedescription of the unit provided by the victim and that, shortly after the victim'sdisclosure, he unexpectedly moved out of his home [*3]at3:30 a.m. during a rain storm and could not be located by Child Protective Servicescaseworkers. Further, the sexual assault nurse examiner testified that she conducted ahead to toe and genital examination of the victim and, while she did not find any injurieson the victim, the lack of apparent injuries did not rule out the possibility of multipleincidents of sexual assault. Under these circumstances, we find no basis to conclude thatthe jury's determination to credit the victim's account is against the weight of theevidence (see People v Bleakley, 69 NY2d 490, 494-495 [1987]; People v Raymo, 19 AD3d727, 728 [2005], lv denied 5 NY3d 793 [2005]). Accordingly, based uponour review of the record as a whole, we find that the verdict is in accord with the weightof the evidence (see People vSorrell, 108 AD3d 787, 789-790 [2013], lv denied 23 NY3d 1025[2014]; People v Reynolds,81 AD3d 1166, 1166-1167 [2011], lv denied 16 NY3d 898 [2011];People v Beauharnois, 64 AD3d at 998-999).
Defendant's next contention—that Supreme Court deprived him of a fair trialby negatively influencing the jury pool and improperly influencing the jury to rush in itsdeliberation—was not properly preserved for our review (see People vCharleston, 56 NY2d 886, 888 [1982]). In any event, were this issue properly beforeus, we would nonetheless find it to be lacking in merit. Supreme Court's questioning ofpotential jurors was a permissible attempt at assessing and ensuring that the prospectivejurors were indeed impartial and not predisposed to a particular outcome (see Peoplev Johnson, 94 NY2d 600, 614 [2000]; People v Warrington, 130 AD3d 1368, 1369-1373 [2015],lv granted 26 NY3d 973 [2015]). Further, contrary to defendant's contention,near the end of the workday on the jury's first day of deliberations, Supreme Courtinformed the jury that it would not be forced to continue deliberating indefinitely andcould go home for the weekend and resume deliberating the following Monday(compare People v Pagan, 45 NY2d 725, 727 [1978]).
Finally, in his pro se submission to the Court, defendant argues that he was notprovided with the effective assistance of counsel because his attorney did not introduceexpert testimony to explain the reasons "for nonexistent medical evidence." Inasmuch asdefendant's claim in this regard is based upon matters not apparent on the face of therecord, this claim is more properly the subject of a postconviction motion (seeCPL 440.10; People v Hansen, 95 NY2d 227, 230-231 [2000]; People v Jenkins, 130 AD3d1091, 1092 [2015]; Peoplev Green, 9 AD3d 687, 688 [2004]).
Peters, P.J., Garry, Egan Jr. and Devine, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:The victim's mother didnot testify at trial.