| People v Shackelton |
| 2019 NY Slip Op 53932 [177 AD3d 1163] |
| November 27, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Eugene Shackelton, Appellant. |
Salvatore Adamo, Albany, for appellant.
Paul Czajka, District Attorney, Hudson (James A. Carlucci of counsel), forrespondent.
Lynch, J.P. Appeal from a judgment of the County Court of Columbia County(Koweek, J.), rendered October 18, 2016, upon a verdict convicting defendant of thecrimes of predatory sexual assault against a child (two counts), aggravated sexual abusein the third degree (five counts), criminal sexual act in the first degree and sexual abusein the first degree.
Defendant and his three codefendants[FN1]were charged by indictment withvarious crimes relating to their alleged sexual abuse of four children (victims A, B, C andD) over a period of several years. Defendant was charged with committing 17 of the 58crimes charged in the indictment—namely, three counts of predatory sexualassault against a child, three counts of course of sexual conduct against a child in the firstdegree, one count of solicitation in the third degree, six counts of aggravated sexualabuse in the third degree, two counts of criminal sexual act in the first degree and twocounts of sexual abuse in the first degree. Defendant was ultimately convicted, followinga lengthy jury trial, of two counts of predatory sexual assault against a child (one countrelating to victim A and one count relating to victim D), five counts of aggravated sexualabuse in the third degree (two counts relating to victim A and three counts relating tovictim D) and one count each of criminal sexual act in the first degree (victim A) andsexual abuse in the first degree (victim A).[FN2]Defendant was sentenced to a prisonterm of 25 years to life on each conviction of predatory sexual assault against a child andto a prison term of seven years, followed by 10 years of postrelease supervision, for eachof the remaining convictions. County Court further directed that the sentences on the fivecounts pertaining to victim A be served concurrently with one another and consecutivelyto the sentences on the four counts pertaining to victim D. Defendant appeals.
Initially, we find no merit to defendant's argument that certain drawings made byvictims A and B constituted inadmissible hearsay and, therefore, should not have beenadmitted into evidence. At trial, the victims' caseworker testified that, when askedseparately if anything had been put inside victim C, both victims A and B drew picturesof a vibrating or shaking object. Contrary to defendant's assertion, the drawings and thetestimony about the drawings were not permitted to prove that such an object was in factplaced inside victim C, but were offered for the nonhearsay purposes of demonstratingthat victims A and B possessed age-inappropriate knowledge of sexual activity andexplaining the nature and details of the caseworker's investigation (see People v Cullen, 24 NY3d1014, 1016 [2014]; Peoplev Ludwig, 24 NY3d 221, 231-232 [2014]; People v Gregory, 78 AD3d 1246, 1246-1247 [2010],lv denied 16 NY3d 831 [2011]). Moreover, the testimony and the admission ofthe drawings into evidence was accompanied by an appropriate limiting instructionwherein County Court advised the jury that such evidence was not to be considered forthe truth of the matter asserted (see People v DeCarr, 130 AD3d 1365, 1366 [2015], lvdenied 26 NY3d 1008 [2015]; People v Rosario, 100 AD3d 660, 661 [2012], lvdenied 20 NY3d 1065 [2013]; People v Gregory, 78 AD3d at 1246-1247).Accordingly, as the challenged evidence was offered for nonhearsay purposes and wasaccompanied by the requisite limiting instruction, we discern no error in the admission ofsuch evidence (see People vHorton, 173 AD3d 1338, 1341 [2019], lv denied 34 NY3d 933 [2019];People v Dunham, 172AD3d 1462, 1464-1465 [2019], lv denied 33 NY3d 1068 [2019]).
Defendant also argues that the verdict is not supported by legally sufficient evidenceand is against the weight of the evidence. Inasmuch as his motion for a trial order ofdismissal was not directed at the specific arguments he raises on appeal, defendant's legalsufficiency claim is unpreserved (see People v Youngs, 175 AD3d 1604, 1606 [2019]; People v Speed, 134 AD3d1235, 1235 [2015], lv denied 27 NY3d 1155 [2016]). Nevertheless, as partof our weight of the evidence review, we necessarily determine whether the Peopleproved each element of the crimes beyond a reasonable doubt (see People v Kelsey, 174AD3d 962, 962 [2019]; People v Fournier, 137 AD3d 1318, 1319 [2016], lvdenied 28 NY3d 929 [2016]).
Although a different outcome would not have been unreasonable here, our review ofthe record confirms that the verdict is not against the weight of the evidence. Victim Atestified that, over multiple occasions when he was between the ages of four and seven,defendant and his codefendants would put various objects—such as dildos, spoonsand sanded-down sticks—inside of him. Victim A also testified that, over a periodof days, months and years, defendant would touch his penis and subject him to anal sex.Victim D similarly testified that, when he was between the ages of four and six,defendant—together with one of the other codefendants—would put theirpenises and sticks in his butt, sometimes while he was tied to a tree, and that this alloccurred "[a] lot," "more than three times." The jury credited victim A's and victim D'stestimony notwithstanding certain inconsistencies brought out on theircross-examinations. Viewing the evidence in a neutral light, and deferring to the jury'sresolution of the credibility issues (see People v Van Alphen, 167 AD3d 1076, 1078 [2018]),we find that defendant's convictions for predatory sexual assault against a child(see Penal Law §§ 130.96, 130.75 [1] [a]), aggravated sexualabuse in the third degree (see Penal Law § 130.66 [1] [c]), criminalsexual act in the first degree (see Penal Law §§ 130.50 [3];130.00 [2] [b]) and sexual abuse in the first degree (see Penal Law§§ 130.65 [3]; 130.00 [3]) are amply supported by the weight of theevidence.
Turning to defendant's sentencing challenge, there is simply no record support tosubstantiate his assertion that the sentence was vindictive or imposed as punishment forhis decision to exercise his right to a trial (see People v Alexander, 160 AD3d 1121, 1124 [2018],lv denied 31 NY3d 1144 [2018]; People v Olson, 110 AD3d 1373, 1377-1378 [2013], lvdenied 23 NY3d 1023 [2014]). We further reject defendant's contention that hissentence was harsh and excessive. The sentence fell within permissible statutoryguidelines, and we will not disturb the sentence given defendant's criminal history, theheinous nature of his crimes and his lack of remorse (see People v Flower, 173 AD3d 1449, 1458 [2019], lvdenied 34 NY3d 931 [2019]; People v Olson, 110 AD3d at 1377-1378).
Furthermore, defendant failed to preserve the remaining arguments he raises onappeal. Specifically, defendant's challenge to County Court's Sandovalcompromise is unpreserved given his failure to object to the ruling prior to the close ofthe hearing (see People vMcCoy, 169 AD3d 1260, 1265 [2019], lv denied 33 NY3d 1033 [2019];People v Pittman, 160AD3d 1130, 1130 [2018], lv denied 31 NY3d 1151 [2018]) and, in anyevent, we perceive no abuse of discretion in the ruling (see People v Mould, 143 AD3d1186, 1188 [2016], lv denied 28 NY3d 1187 [2017]). Defendant similarlyfailed to preserve his challenge to County Court's Molineux ruling allowingevidence that defendant threatened to kill or harm the victims if they disclosed the abuse(see People v Cayea, 163AD3d 1279, 1280 [2018], lv denied 32 NY3d 1109 [2018]), and, even if wewere to review his claim, we would reject it (see People v Maggio, 70 AD3d 1258, 1260 [2010], lvdenied 14 NY3d 889 [2010]; People v Greene, 306 AD2d 639, 642 [2003],lv denied 100 NY2d 594 [2003]). Defendant further failed to preserve hisarguments relating to certain instructions given to the jury or to the lack of acircumstantial evidence charge (see CPL 470.05 [2]; People v McClenos, 172 AD3d1638, 1640 [2019], lv denied 33 NY3d 1107 [2019]; People v Ash, 162 AD3d1318, 1322 [2018], lv denied 32 NY3d 1002 [2018]). Even if preserved, wewould find no error in the charges given and that defendant was not entitled to acircumstantial evidence charge (see People v McCoy, 169 AD3d at 1266; People v Coker, 121 AD3d1305, 1307-1308 [2014], lv denied 26 NY3d 927 [2015]). Finally, becausedefendant did not raise the alleged repugnancy of the verdict prior to the jury's discharge,such argument is unpreserved (see People v Alfaro, 66 NY2d 985, 987 [1985];People v Young, 152 AD3d981, 983 [2017], lv denied 30 NY3d 955 [2017]).
Any arguments not expressly addressed have been examined and found to be withoutmerit.
Mulvey, Devine and Pritzker, JJ., concur; Clark, J., not taking part. Ordered that thejudgment is affirmed.
Footnote 1:This Court recentlyaffirmed the convictions relating to one of the codefendants (People v Van Alphen, 167AD3d 1076 [2018], lv denied 32 NY3d 1210 [2019]).
Footnote 2:Although the jury alsofound defendant guilty of two counts of course of sexual conduct against a child in thefirst degree, County Court subsequently dismissed those counts as lesser includedoffenses of the counts of predatory sexual assault against a child, of which he was foundguilty.