| People v Saxe |
| 2019 NY Slip Op 05345 [174 AD3d 958] |
| July 3, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Jonathan R. Saxe, Appellant. |
Rural Law Center of New York, Castleton (Kelly L. Egan of counsel), for appellant.
Patrick A. Perfetti, District Attorney, Cortland (Elizabeth McGrath of counsel), forrespondent.
Clark, J. Appeal from a judgment of the County Court of Cortland County (Campbell, J.),rendered February 16, 2017, upon a verdict convicting defendant of the crimes of criminal sexualact in the first degree and endangering the welfare of a child.
In May 2016, defendant was charged with criminal sexual act in the first degree andendangering the welfare of a child based upon allegations that, between July 2011 and October 1,2012, defendant engaged in oral sexual contact with a male relative, who was six or seven yearsold at the time. Following a jury trial, at which County Court permitted the People to presentevidence of defendant's alleged prior sexual abuse of two female relatives, defendant wasconvicted as charged. Defendant was subsequently sentenced to a prison term of five years,followed by five years of postrelease supervision, for his conviction of criminal sexual act in thefirst degree and a concurrent jail term of one year for his conviction of endangering the welfareof a child. Defendant appeals.
Initially, we are unpersuaded by defendant's contention that the verdict is against the weightof the evidence. As relevant here, "[a] person is guilty of criminal sexual act in the first degreewhen he or she engages in oral sexual conduct . . . with another person. . . [w]ho is less than [11] years old" (Penal Law § 130.50 [3]).Additionally "[a] person is guilty of endangering the welfare of a child when . . .[h]e or she knowingly acts in a manner likely to be injurious to the physical, mental or moralwelfare of a child less than [17] years old" (Penal Law § 260.10 [1]).
The victim testified that, when he was six or seven years old, he and defendant were lying onthe floor in his sister's bedroom and defendant asked him to put his mouth on defendant's penis,which he did. The victim described the incident in detail, providing specific testimony as to howdefendant acted during the encounter, the length of the encounter and the room in which itoccurred, including that there was a dialysis machine in the bedroom. Although the victim couldnot recall exactly when the incident occurred, the victim's mother testified that the victim's sisterhad a dialysis machine beginning in July 2011 and that defendant moved out of the home inOctober 2012. Although it would not have been unreasonable for the jury to have reached adifferent verdict, when we view the evidence in a neutral light and defer to the jury's credibilitydeterminations, we find that the verdict is supported by the weight of the evidence (see People v Fournier, 137 AD3d1318, 1319-1320 [2016], lv denied 28 NY3d 929 [2016]; People v Thiel, 134 AD3d 1237,1239-1240 [2015], lv denied 27 NY3d 1156 [2016]).
We, however, find merit to defendant's contention that County Court's Molineuxruling—which allowed the People to introduce evidence during their case-in-chief ofdefendant's alleged prior sexual contact with two female relatives—deprived him of a fairtrial. Generally, "evidence of uncharged crimes is inadmissible where its purpose is only to showa defendant's bad character or propensity towards crime" (People v Morris, 21 NY3d 588, 594 [2013]; see People vAlvino, 71 NY2d 233, 242 [1987]). Evidence of a defendant's prior bad acts may, however,be admissible if it is relevant to a material issue other than the defendant's criminalpropensity—such as intent, motive or to establish a common scheme or plan—andif the probative value of the evidence outweighs any prejudicial effect (see People v Giles, 11 NY3d 495,499 [2008]; People v Alvino, 71 NY2d at 242- 243).
Consistent with their Molineux application, the People presented testimony from twoof defendant's female relatives, who each testified in detail as to instances of alleged sexual abuseperpetrated against them by defendant more than seven years prior to the victim's disclosure. Thefemale relatives specifically testified to repeated instances of oral sex, vaginal sex and digitalpenetration by defendant, and one of the female relatives stated that defendant forced her and theother female relative to perform sexual acts upon each other as he watched. Contrary to CountyCourt's conclusion, such detailed testimony was not necessary to complete the narrative as tohow and why the victim's disclosure occurred (compare People v Jones, 101 AD3d 1482, 1483 [2012], lvdenied 21 NY3d 1017 [2013]; People v Justice, 99 AD3d 1213, 1215 [2012], lv denied 20NY3d 1012 [2013]). Additionally, the prior uncharged acts did not bear a sufficient similarity tothe incident underlying the charged crimes so as to constitute, as the People argued, a commonscheme or plan or demonstrate defendant's intent or motive (see People v Buskey, 45 AD3d 1170, 1172-1173 [2007]; compare People v Denson, 26 NY3d179, 186-188 [2015]).[FN1] Accordingly, as the People failed to establishthat the proffered evidence was probative of a material issue other than defendant's criminalpropensity, County Court erred in permitting such evidence (see People v Brown, 114 AD3d 1017, 1020 [2014]). Moreover,even if the proffered evidence were relevant to some nonpropensity purpose, County Courterroneously determined that the probative value of the evidence outweighed its prejudicial effect(see People v Scaringe, 137 AD3d1409, 1417 [2016], lv denied 28 NY3d 936 [2016]).[FN2]
Given that the evidence supporting the convictions was not overwhelming, we cannotconclude that County Court's error in permitting detailed testimony from defendant's allegedprior victims was harmless (see People v Brown, 114 AD3d at 1020; People vBuskey, 45 AD3d at 1174). Such error was compounded by County Court allowing evidenceconcerning another child victim, which was not included in the People's Molineuxproffer, as well as testimony from the victim's mother and a detective as to defendant'sadmissions regarding one of the female relatives. Although the court gave appropriate limitinginstructions to the jury, the pervasive nature of the improper and prejudicial testimony could notbe remedied by those instructions. Such testimony gave rise to a significant risk that the juryconvicted defendant based, in whole or in part, upon the conclusion that he was a serial sexoffender who had not been punished for his prior uncharged crimes (see People v Buskey,45 AD3d at 1174). Under these circumstances, the judgment of conviction must be reversed.
One other issue bears noting. County Court erroneously permitted the mother and a detectiveto provide impermissible hearsay testimony regarding the victim's disclosure of the incident. Thedisclosure, which took place more than 2
Defendant's remaining contentions have been rendered academic by our determinationherein.
Garry, P.J., Lynch, Devine and Aarons, JJ., concur. Ordered that the judgment is reversed, onthe law, and matter remitted to the County Court of Cortland County for further proceedings notinconsistent with this Court's decision.
Footnote 1:Significantly, intent is not anelement of either of the underlying charges (see Penal Law §§ 130.50[3]; 260.10 [1]).
Footnote 2:In so determining, County Courtincorrectly concluded that "the probative value [of the evidence] is heightened where, as here, theprosecution's case is limited primarily to the testimony of the child-victim."