| People v Hansel |
| 2021 NY Slip Op 07035 [200 AD3d 1327] |
| December 16, 2021 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Raymond A. Hansel, Appellant. |
Aswad & Ingraham, LLP, Binghamton (Thomas A. Saitta of counsel), forappellant.
Michael A. Korchak, District Attorney, Binghamton (Rita M. Basile of counsel), forrespondent.
Reynolds Fitzgerald, J. Appeals (1) from a judgment of the County Court of Broome County(Cawley Jr., J.), rendered February 13, 2020, upon a verdict convicting defendant of the crimes ofpredatory sexual assault against a child and rape in the first degree (three counts), and (2) bypermission, from an order of said court, entered September 2, 2020, which denied defendant'smotion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.
In 2016, the victim (born in 2002) came forward with allegations that defendant, who hadbeen married to her mother, had sexually abused her over an approximately four-year periodfrom 2010 to 2014. Defendant was charged in an indictment with one count of predatory sexualassault against a child and four counts of rape in the first degree. Following a jury trial, defendantwas found guilty of predatory sexual assault against a child and three counts of rape in the firstdegree. County Court sentenced defendant to concurrent prison terms of 15 years to life upon thepredatory sexual assault conviction and to 10 years, followed by 10 years of postreleasesupervision, on each rape conviction. Following sentencing, defendant moved pursuant to CPL440.10 to vacate the judgment of conviction upon the basis that new evidence had beendiscovered. County Court denied the motion without a hearing. Defendant appeals from thejudgment of conviction and, by permission, from the order denying his postconvictionmotion.
Defendant contends that the verdict was against the weight of the evidence, arguing that thevictim was either incredible as a matter of law or lacked credibility. "When conducting a weightof the evidence review, this Court must first determine whether, based on all the credibleevidence, a different finding would not have been unreasonable and, if not, then weigh therelative probative force of conflicting testimony and the relative strength of conflicting inferencesthat may be drawn from the testimony to determine if the verdict is supported by the weight ofthe evidence" (People v Cummings,188 AD3d 1449, 1450 [2020] [internal quotation marks and citations omitted], lvdenied 36 NY3d 1096 [2021]). "When conducting this review, we consider the evidence in aneutral light and defer to the jury's credibility assessments" (People v Santana, 179 AD3d 1299, 1300 [2020] [internal quotationmarks and citations omitted], lv denied 35 NY3d 973 [2020]). "Testimony is incredibleas a matter of law if it is inherently unworthy of belief because it is manifestly untrue, physicallyimpossible or contrary to human experience" (People v Watkins, 180 AD3d 1222, 1230 [2020] [internal quotationmarks, brackets and citations omitted], lv denied 35 NY3d 1030 [2020]).
As relevant here, "[a] person is guilty of predatory sexual assault against a child when, being[18] years old or more, he or she commits the crime of rape in the first degree, criminal sexualact in the first degree, aggravated sexual abuse in the [*2]firstdegree, or course of sexual conduct against a child in the first degree, as defined in [Penal Lawarticle 130], and the victim is less than [13] years old" (Penal Law § 130.96). "Aperson is guilty of course of sexual conduct against a child in the first degree when, over a periodof time not less than three months in duration[,] . . . he or she, being [18] years oldor more, engages in two or more acts of sexual conduct, which include at least one act of sexualintercourse, oral sexual conduct, anal sexual conduct or aggravated sexual contact, with a childless than [13] years old" (Penal Law § 130.75 [1] [b]). "A person is guilty of rape inthe first degree when he or she engages in sexual intercourse with another person. . . [w]ho is less than [13] years old and the actor is [18] years old or more" (PenalLaw § 130.35 [4]).
The victim testified that defendant resided in their household from the time that she wasseven years old until she was 12 years old. She stated that defendant began abusing her when shewas eight, and that said abuse began with inappropriate kissing and graduated to include oralsexual conduct and vaginal penetration. According to the victim, such abuse occurred not onlywhen the mother was absent from the residence, but while she was in the home either sleeping orill. Although the victim did not recall every instance of abuse, she steadfastly maintained that,once it began, it was a daily occurrence until defendant and her mother ended their relationshipand he moved out of the residence. After defendant moved out, the victim continued to visit himat his sister's residence. She contended that on one overnight visit, defendant had sexual relationswith her. She also testified that on another occasion, when she was sick and stayed home fromschool, the mother asked defendant to care for the victim and he abused her. The victimexplained that she had not disclosed the abuse earlier because she did not think anyone wouldbelieve her and feared that defendant would hurt her family, and because defendant advised herthat her mother and he would go to jail. Her disclosure came after her mother discovered herhaving sexual conversations online and her mother told her that she was going to take her to atherapist. The victim explained that she wanted her mother to hear about the abuse from herrather than the therapist. On cross-examination, the victim admitted that she had fabricatedaccusations of physical abuse against her mother and brother, but denied that she had madeaccusations that her brother sexually abused her. She admitted that she had told a therapist thatlying had become normal to her but avowed this was because she had to cover up the abuse.
The victim's mother testified to defendant's work schedule while they were together and thathe was born in 1981. A family nurse practitioner testified that she conducted an examination ofthe victim and discovered a five-millimeter dissection in the [*3]victim's hymen, which was abnormal and consistent with sexualabuse. A licensed clinical social worker testified to typical behaviors of victims of child sexualabuse, including that delay in disclosure is normal, as is the inability of children to recall thespecific dates of abuse.
Defendant testified and denied ever sexually abusing the victim. He further testified that hiswork schedule allowed him little time to be alone with the victim, and his work records indicatethat he worked the day that the victim alleged she was abused while sick at home. Defendant'ssister testified that, on the one occasion when the victim and her siblings spent the night at thesister's residence, she checked on the children and the victim was sleeping in a bedroom with heryounger sister.
A contrary verdict would not have been unreasonable had the jury credited defendant'stestimony. Although defendant asserts that the victim's account was unworthy of belief due to hercontradictory and inconsistent statements, the delay in disclosure and her propensity for lying, "itis not uncommon for young children to be uncertain and even inconsistent in their trialtestimony" (People v Werkheiser,171 AD3d 1297, 1301 [2019] [internal quotation marks and citations omitted], lvdenied 33 NY3d 1109 [2019]). Additionally, the inconsistencies did not render her testimony"inherently unbelievable or incredible as a matter of law" (People v Kelsey, 174 AD3d 962, 964 [2019] [internal quotationmarks and citations omitted], lv denied 34 NY3d 982 [2019], cert denied 593 US&mdash, 141 S Ct 2607 [2021]). The victim's propensity for lying, along with her explanationfor her delay in reporting the abuse, raised credibility issues for the jury to resolve (see People v Bieganowski, 104 AD3d1276, 1277 [2013], lv denied 21 NY3d 1002 [2013]; People v Reynolds, 81 AD3d1166, 1167 [2011], lv denied 16 NY3d 898 [2011]). Moreover, these issues "wereexplored at trial and did not dissuade the jury from crediting the victim's testimony" (People v Horton, 173 AD3d 1338,1340 [2019], lv denied 34 NY3d 933 [2019]). "Thus, viewing the evidence in a neutrallight and according deference to the jury's credibility determinations, we find the verdict as tothese convictions to be in accord with the weight of the evidence" (People v Watkins, 180AD3d at 1230 [citation omitted]; seePeople v Farnham, 136 AD3d 1215, 1217 [2016], lv denied 28 NY3d 929[2016]).
Defendant next contends that County Court erred in allowing the victim's mother to testifyregarding the frequency of her sexual relations with defendant. At trial, the mother testified that,although her sex life with defendant was abundant during the beginning of their relationship, itdeclined precipitously "towards the end of 2010." The victim testified that the abuse began whenshe was eight years old, or sometime around 2010,[FN*] and continued on a daily basis. County Courtallowed the testimony as circumstantial evidence that defendant's [*4]sexual desires were being met elsewhere.
"[E]vidence is relevant if it tends to prove the existence or non-existence of a material fact,i.e., a fact directly at issue in the case" (People v Primo, 96 NY2d 351, 355 [2001])."[C]ircumstantial evidence is direct evidence of a fact from which a person may reasonably inferthe existence or non-existence of another fact" (People v Taylor, 196 AD3d 851, 854 [2021] [internal quotationmarks, brackets and citations omitted], lv denied 37 NY3d 1030 [2021]). "An inference isnot a suspicion or a guess. It is a reasoned, logical decision to conclude that a disputed fact existson the basis of another fact that is known to exist" (United States v Pauling, 924 F3d 649,656 [2d Cir 2019] [internal quotation marks and citations omitted]). Although we must accorddeference to the inferences drawn by the jury, we accord no such deference to the jury'sspeculation (see id.). The issue here is that the "fact" testified to, the significant reductionin the frequency of the couple's sexual encounters, is not a fact from which the jury couldreasonably infer the existence of a fact material to the charges against defendant, i.e., whether hesexually abused the victim. Rather, it allows the jury to impermissibly speculate that thereason that defendant and the victim's mother had less frequent sex was because he replaced onesexual partner, the victim's mother, with another, the victim. Furthermore, "[i]t is axiomatic thatevidence bearing on the sexual climate of a household is inadmissible where it does not tend toprove a material element of the crime charged and is introduced simply to demonstrate apredisposition to commit the subject offense" (People v Seaman, 239 AD2d 681, 681[1997] [internal quotation marks omitted], appeal dismissed 91 NY2d 954 [1998]).Although such testimony may be admitted if it demonstrates the relationship between the partiesor completes a sequence of events (see People v Mercado, 188 AD2d 941, 943 [1992]),the testimony in this case was not offered to prove a material element of the case, the relationshipof the parties, nor was it an integral part of the sequence of events leading to the criminal conductor delay in the disclosure. The People candidly admitted that the purpose of the testimony was toconvince the jury that defendant, who the victim's mother testified had exhibited a vociferoussexual appetite, suddenly stopped having frequent sex with her and filled the void with thevictim. As such, County Court erred in allowing the testimony.
We agree with defendant that said error was not harmless. "[U]nless the proof of thedefendant's guilt . . . is overwhelming, there is no occasion for consideration of anydoctrine of harmless error" (People v Crimmins, 36 NY2d 230, 241 [1975]. The evidencein this case was not overwhelming and, in fact, came down to a determination of the credibilityof defendant (see People v Taylor, 196 AD3d at 855; People v Callahan, 186[*5]AD3d 943, 946 [2020]). Accordingly, we reverse and remitfor a new trial.
We address defendant's contention that County Court erred in allowing expert testimonyregarding child sexual abuse accommodation syndrome as this issue may arise upon retrial. "It iswell settled that an expert witness may testify about . . . child sexual abuseaccommodation syndrome . . . so long as he or she does not draw any comparison tothe facts of the case" (People vAdams, 135 AD3d 1154, 1157 [2016] [citations omitted], lv denied 27 NY3d990 [2016]). The expert testified that she did not meet the victim or any witness nor did she haveany information regarding the facts of the case. Additionally, the expert did not proffer anopinion as to the victim's credibility or whether abuse occurred. Instead, the expert properlyconfined her testimony to educating the jury on the syndrome. Accordingly, the expert'stestimony was proper (see People vGooley, 156 AD3d 1231, 1233 [2017], lv denied 31 NY3d 984 [2018]; People v Gokey, 134 AD3d 1246,1247 [2015], lv denied 27 NY3d 1069 [2016]). Defendant's remaining contentions, bothon his direct appeal and on his appeal from the order denying his CPL article 440 motion, arerendered academic by our decision.
Garry, P.J., Egan Jr., Aarons and Colangelo, JJ., concur. Ordered that the judgment isreversed, on the law, and matter remitted to the County Court of Broome County for a new trial.Ordered that the appeal from the order is dismissed, as academic.
Footnote *:The earliest date on theindictment is July 2010.