| People v Gannon |
| 2019 NY Slip Op 05591 [174 AD3d 1054] |
| July 11, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Arthur A. Gannon, Appellant. |
Danielle Neroni Reilly, Albany, for appellant.
Karen A. Heggen, District Attorney, Ballston Spa (Gordon W. Eddy of counsel), forrespondent.
Lynch, J. Appeal from a judgment of the County Court of Saratoga County (Murphy III, J.),rendered September 27, 2016, upon a verdict convicting defendant of the crimes of predatorysexual assault (three counts), predatory sexual assault against a child (two counts), use of a childin a sexual performance, sexual abuse in the first degree (two counts) and endangering thewelfare of a child (two counts).
Defendant was charged by indictment with various crimes stemming from his inappropriatesexual contact with his two minor stepdaughters (hereinafter the victims)—with which hiswife, Heidi Gannon, had assisted—over the course of many years.[FN*] Following a jury trial, defendant was convictedof three counts of predatory sexual assault, two counts of predatory sexual assault against a child,one count of use of a child in a sexual performance, two counts of sexual abuse in the first degreeand two counts of endangering the welfare of a child. Defendant was sentenced to concurrent andconsecutive terms, resulting in a maximum prison term of 69 years to life. Defendantappeals.
We affirm. Initially, we reject defendant's assertion that he was deprived of his right to testifybefore the grand jury. "Where, as here, a defendant has been arraigned in a local criminal courtupon a currently undisposed of felony complaint charging an offense which is a subject of theprospective or pending grand jury proceeding, the district attorney must notify the defendant orhis or her attorney of the prospective or pending grand jury proceeding and accord the defendanta reasonable time to exercise his or her right to appear as a witness therein. A defendant, in turn,has a right to appear before such grand jury as a witness in his or her own behalf if, prior to thefiling of any indictment, he or she serves upon the district attorney of the county a written noticemaking such request and stating an address to which communications may be sent" (People v Wilkerson, 140 AD3d1297, 1299 [2016] [internal quotation marks, ellipses, brackets and citations omitted], lvdenied 28 NY3d 938 [2016]; see CPL 190.50 [5] [a]; People v Evans, 79NY2d 407, 412 [1992]; People vHarrison, 162 AD3d 1207, 1209 [2018], lv denied 32 NY3d 1205 [2019]). "Theconcept of reasonableness is flexible and must be applied to the particular facts of a case asknown at the time" (People v Sawyer, 96 NY2d 815, 816 [2001]).
The record reflects that defendant was arraigned on a felony complaint on July 15, 2015. OnOctober 19, 2015, defendant was assigned new counsel. Two days later, at approximately 3:27p.m., defense counsel notified the People of her representation and advised that defendantintended to testify before the grand jury. Within minutes, the People called defense counsel andstated their intention to present the case to the grand jury as soon as possible. By 10:00 a.m. thenext morning, the People had faxed and personally served defense counsel with a CPL 190.50notice, advising that, in order to exercise his right to testify as a witness before the grand jury,defendant "should appear at the Saratoga County District Attorney's [o]ffice on October 23rd,2015 at 9:30 [a.m.]" Defense counsel did not respond and failed to appear. Later in the afternoonon October 23, 2015, the People filed a CPL 180.80 (2) notice indicating that the grand jury hadvoted an indictment against defendant. Prior to taking the vote, the People verified with staff atthe Saratoga County District Attorney's office that they had not heard from defense counsel.Although defendant takes issue with the People's failure to produce him for the grand jury, heacknowledges that counsel received the notice and fails to explain why she did not appear at thegrand jury proceeding or contact the People with respect thereto. Under these circumstances, wefind that defendant was provided with reasonable notice and a reasonable opportunity to testifybefore the grand jury (see People vMiller, 160 AD3d 1040, 1041 [2018], lv denied 32 NY3d 939 [2018]; People v Watkins, 40 AD3d 290,290-291 [2007], lv denied 9 NY3d 870 [2007]).
Defendant next contends that count 6 of the indictment—charging use of a child in asexual performance—was rendered duplicitous because there was testimony regarding avideo as well as photographs. "An indictment count is duplicitous when it charges more than onecrime that is completed by a discrete act in the same count" (People v Madsen, 168 AD3d 1134, 1137 [2019] [citation omitted];see CPL 200.30; People vHughes, 114 AD3d 1021, 1024 [2014], lv denied 23 NY3d 1038 [2014]). "Evenif a count facially charges one criminal act, that count is duplicitous if the evidence makes plainthat multiple criminal acts occurred during the relevant time period, rendering it nearlyimpossible to determine the particular act upon which the jury reached its verdict" (People v Dalton, 27 AD3d 779,781 [2006] [citations omitted], lv denied 7 NY3d 754 [2006], lv denied uponreconsideration 7 NY3d 811 [2006]; see People v Black, 65 AD3d 811, 813 [2009], lv denied 13NY3d 905 [2009]). Count 6 alleged that, "on or about September 2009, knowing the characterand content thereof [defendant] employed, authorized or induced a child less than [17] years ofage to engage in a sexual performance." The bill of particulars specified that the crime wasagainst the younger victim. Gannon testified to an incident where defendant recorded himselfsexually abusing the younger victim on a video camera. During summation, the Peoplespecifically tied the videotape to count 6. Although the victims and Gannon testified thatdefendant would typically photograph his abuse, in reference to these photographs, the witnessesnever described a sexual performance being depicted within the meaning of Penal Law§ 263.00 (1) and (3). As this testimony did not "make[ ] plain that multiple criminalacts occurred during the relevant time period" (People v Dalton, 27 AD3d at 781), wefind that count 6 was not duplicitous (see People v Weber, 25 AD3d 919, 922 [2006], lv denied 6NY3d 839 [2006]).
Defendant further contends that County Court improperly denied his motion to suppressitems seized from the Saratoga County Public Defender's office or, alternatively, hold aMapp/Dunaway hearing on that issue. Defendant also contends that the court erred inruling that certain fruits of that search were not covered by the attorney-client privilege. "Thetrial court may summarily deny a motion to suppress evidence if the motion papers do not allegea ground constituting legal basis for the motion or if the sworn allegations of fact do not as amatter of law support the ground alleged" (People v Durfey, 170 AD3d 1331, 1336 [2019] [internal quotationmarks, brackets, ellipsis and citations omitted]; see People v Briskin, 125 AD3d 1113, 1116-1117 [2015], lvdenied 25 NY3d 1069 [2015]). In support of his motion, defendant argued that there aresignificant factual issues that cannot be adequately resolved without a Mapp/Dunawayhearing, specifically, whether the search warrant was based upon probable cause. We find thatdefendant's bare allegation of a lack of probable cause, without any factual support, wasinsufficient to require a hearing (see CPL 710.60 [3]; People v Durfey, 170 AD3dat 1336). In any event, upon review of the search warrant application and accompanying swornstatements, we conclude that County Court properly determined that there was probable cause toissue the warrant (see People vBrown, 167 AD3d 1331, 1333 [2018]; People v Cherry, 149 AD3d 1346, 1347-1348 [2017], lvdenied 29 NY3d 1124 [2017]). With respect to defendant's claim of attorney-client privilege,we find that the crime-fraud exception applied because there was reasonable cause to believe thatthe items seized pursuant to the search warrant constituted physical evidence of a crime and thattheir delivery to counsel was for the purpose of concealing evidence, not for seeking legal advice(see People v Kimes, 37 AD3d1, 27 [2006], lv denied 8 NY3d 881 [2007]).
We next address defendant's contention that County Court's Molineux ruling, whichallowed the People to present evidence of certain prior acts of sexual abuse against the victims,deprived him of a fair trial. "Although evidence of prior uncharged crimes or bad acts may neverbe presented for the sole purpose of establishing a defendant's criminal propensity or badcharacter, such evidence may be admissible if it is probative of some other material issue or factin the case and its probative value outweighs any undue prejudice" (People v Knox, 167 AD3d 1324,1325-1326 [2018] [citations omitted], lv denied 33 NY3d 950 [2019]; see People v Frumusa, 29 NY3d364, 369 [2017]; People vMcCommons, 143 AD3d 1150, 1153 [2016], lv denied 29 NY3d 999 [2017]).Such evidence may be admitted where it falls within at least one of the "recognizedMolineux exceptions—motive, intent, absence of mistake, common plan orscheme and identity—or where such proof is inextricably interwoven with the chargedcrimes, provides necessary background or completes a witness's narrative" (People v Ward, 141 AD3d 853,860 [2016] [internal quotation marks and citations omitted]; see People v Anthony, 152 AD3d 1048, 1051 [2017], lvdenied 30 NY3d 978 [2017]).
Here, the evidence offered by the People regarding defendant's prior sexually abusive actsagainst the victims was material to several issues in the case, including defendant's motive andintent to commit the charged crimes and the absence of mistake or accident, and also providedbackground information and context regarding the nature of defendant's relationship with thevictims (see People v Knox, 167 AD3d at 1326). Moreover, County Court's rulingreflected a careful and thoughtful balancing of the probative value of the proffered evidenceagainst its prejudicial impact, as the court precluded certain aspects of the People'sMolineux proffer that it found to be prejudicial. County Court also gave timely andappropriate limiting instructions regarding the proper use of the challenged evidence, therebylimiting any prejudicial impact (see People v Horton, 173 AD3d 1338, 1341 [2019]; People v Kamp,129 AD3d 1339, 1340 [2015], lv denied 26 NY3d 969 [2015]). Accordingly, wediscern no error or abuse of discretion in County Court's Molineux ruling.
We find defendant's challenge to County Court's Sandoval ruling unavailing."Whether and to what extent prior convictions may be used on cross-examination of a defendantis a matter which rests in the sound discretion of the trial court after appropriately balancing theprobative worth of the evidence as it relates to the defendant's credibility against the risk of unfairprejudice to the defendant, including whether it would discourage him or her from testifying" (People v Iovino, 149 AD3d 1350,1353 [2017] [internal quotation marks, ellipsis, brackets and citations omitted], lv denied30 NY3d 950 [2017]; see People vPietoso, 168 AD3d 1276, 1279 [2019], lv denied 33 NY3d 1034 [2019]). Here,if defendant intended to testify, County Court permitted the People to question him on his 1990conviction for sexual abuse in the first degree, including the date of the conviction, theunderlying acts and the sentence imposed thereon. The 1990 conviction, as well as the underlyingacts, related to defendant's willingness to put his own self-interests above that of society, and,although similar to the crimes charged here, "similarity alone is insufficient to precludecross-examination" (People vMitchell, 57 AD3d 1308, 1311 [2008] [internal quotation marks and citation omitted];see People v Vasquez, 71 AD3d1179, 1180 [2010], lv denied 14 NY3d 894 [2010]). To the extent that defendantcontends that County Court improperly applied a Molineux analysis in itsSandoval ruling, the record reflects that County Court unambiguously stated that it waspermitting inquiry into the 1990 conviction because it shows a propensity to place defendant'sinterests above those of society (see People v Bennette, 56 NY2d 142, 148 [1982]) and,prior to delivering its ruling, the court accurately recited the correct Sandoval standard.As County Court struck an appropriate balance in its Sandoval ruling, we cannotconclude that the court abused its discretion (see People v Vasquez, 71 AD3d at 1180;People v Mitchell, 57 AD3d at 1311-1312).
We also find that County Court did not err in declining to hold a hearing as to whether twowitnesses—Gannon and Brent Hubert, a Child Protective Servicescaseworker—had acted as agents of the police. Defendant failed to set forth facts orpresent evidence to demonstrate a clear connection between the conduct of the witnesses and thepolice, or that the witnesses had acted at the instigation of the police, under the close supervisionof the police or on behalf of the police. Accordingly, as defendant's agency claim was based onlyon speculation, a hearing was not required (see People v Grisafi, 192 AD2d 147, 150[1993], lv denied 82 NY2d 925 [1994]; People v Bent, 160 AD2d 1176, 1178[1990], lv denied 76 NY2d 937 [1990]).
Defendant's challenges to County Court's evidentiary rulings are without merit. We rejectdefendant's contention that the People misrepresented the DNA evidence through the testimonyof a forensic scientist. The forensic scientist acknowledged that she could not exclude or includethe victims as matching the DNA present on a bandana that defendant had ostensibly used.Moreover, the conclusions to be drawn from the expert's testimony were addressed duringdefendant's cross-examination, and defendant presented his own expert witness on this subject.Nor did the court abuse its discretion in admitting into evidence a photograph of the door that ledinto defendant and Gannon's apartment, which included notations of "Private Property," "NoTrespassing" and "I support the 2nd Amendment." This photograph was relevant to and probativeof the People's theory of the case that defendant controlled access to the apartment and that hewas cognizant of his legal rights. The photograph was not introduced "for the sole purpose ofarousing the emotions of the jury and to prejudice defendant" (People v Greenfield, 167 AD3d1060, 1063 [2018] [internal quotation marks, brackets, ellipsis and citations omitted], lvdenied 32 NY3d 1204 [2019]).
Defendant's further contention that County Court improperly limited his cross-examinationof certain witnesses, depriving him of his right to present a defense, is unavailing. A trial courtmay impose reasonable limits on a defendant's cross-examination of a witness "based onconcerns about, among other things, harassment, prejudice, confusion of the issues, thewitness'[s] safety, or interrogation that is repetitive or only marginally relevant" (People v Fields, 160 AD3d 1116,1120 [2018] [internal quotation marks and citation omitted], lv denied 31 NY3d 1116[2018]; see People v Alcarez, 141AD3d 943, 943 [2016], lv denied 28 NY3d 1025 [2016]). Further, a trial court is"accorded wide discretion in making evidentiary rulings and, absent an abuse of discretion, thoserulings should not be disturbed on appeal" (People v Collins, 126 AD3d 1132, 1133 [2015] [internal quotationmarks and citation omitted], lv denied 25 NY3d 1161 [2015]; see People v Wynn, 149 AD3d1252, 1255 [2017], lv denied 29 NY3d 1136 [2017]). "However, a court's discretionin evidentiary rulings is circumscribed by the rules of evidence and the defendant's constitutionalright to present a defense" (People vHall, 160 AD3d 210, 214 [2018] [internal quotation marks and citations omitted]). Wefind County Court's various limitations on defendant's ability to cross-examine the witnesses tobe reasonable, and defendant was able to elicit testimony to present his defense, as well as toextensively cross-examine the witnesses. To the extent that any error occurred, we find such tobe harmless beyond a reasonable doubt, as the proof of defendant's guilt—including thetestimony of Gannon and the victims, as well as other corroborating evidence—wasoverwhelming, and there is no reasonable possibility that the error might have contributed todefendant's conviction (see generally People v Crimmins, 36 NY2d 230, 242[1975]).
Defendant's remaining evidentiary challenges warrant little discussion. County Court did noterr in precluding the admission of the domestic incident report, as it contained inadmissiblehearsay of Gannon and defendant (seegenerally People v Patterson, 28 NY3d 544, 550-551 [2016]). Nor did the court err inallowing the People's witness, an investigator with the Saratoga County Sheriff's Department, toread certain sections of a book titled "The Duck Commander Faith and Family Bible," as well assections of the Penal Code and the Criminal Procedure Law that were underlined in red orhighlighted, while limiting defendant to reading the title of each section. Given the numeroushighlighted sections, the court's ruling avoided undue delay and confusion, while permittingdefendant to convey his intended message (compare People v Demagall, 114 AD3d 189, 200-201 [2014], lvdenied 23 NY3d 1035 [2014]).
We also reject defendant's contention that the testimony of several witnesses regarding thevictims' disclosures constituted hearsay and improper bolstering, depriving him of a fair trial."New York courts have routinely recognized that nonspecific testimony about a child-victim'sreports of sexual abuse does not constitute improper bolstering when offered for the relevant,nonhearsay purpose of explaining the investigative process and assisting in the completion of thenarrative of events which led to the defendant's arrest" (People v Gross, 26 NY3d 689, 695 [2016] [internal quotationmarks, brackets and citations omitted]; see People v Galloway, 93 AD3d 1069, 1072 [2012], lvdenied 19 NY3d 996 [2012]). Here, the challenged testimony did not constitute improperbolstering, as it either did not involve a prior consistent statement of one of the victims, did notconstitute hearsay testimony or completed the narrative of events that led to defendant's arrest (see generally People v Honghirun, 29NY3d 284, 289 [2017]; Nucci v Proper, 95 NY2d 597, 602 [2001]). Finally, wereject defendant's contention that the prosecutor's alleged improper comments during his openingstatement and summation deprived defendant of a fair trial (see People v Deshane, 160 AD3d 1216, 1217-1218 [2018], lvdenied 31 NY3d 1146 [2018]; People v Simmons, 111 AD3d 975, 980-981 [2013], lvdenied 22 NY3d 1203 [2014]). We have examined defendant's remaining contentions andfind them unavailing.
Garry, P.J., Egan Jr., Mulvey and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:Gannon's conviction upon herplea of guilty of the crimes of criminal sexual act in the first degree and sexual abuse in the firstdegree was the subject of a separate appeal before this Court (People v Gannon, 167 AD3d 1163 [2018]).