| People v Scanlon |
| 2008 NY Slip Op 05589 [52 AD3d 1035] |
| June 19, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Michael L.Scanlon, Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Joann Rose Parry of counsel), forrespondent.
Cardona, P.J. Appeal from a judgment of the County Court of Broome County (Mathews, J.),rendered November 27, 2006, upon a verdict convicting defendant of the crimes of sexual abuse in thefirst degree, attempted rape in the first degree, sexual abuse in the third degree (three counts),attempted rape in the third degree, endangering the welfare of a child and perjury in the first degree.
On October 5, 2005, the 15-year-old victim herein informed her school counselor and, later, childprotective investigators that she had been sexually assaulted by defendant, her mother's live-inboyfriend, on several occasions between September 17, 2005 and October 3, 2005. Defendant, bornin 1974, was arrested and testified before a grand jury, which subsequently issued a multicountindictment charging him with various degrees of attempted rape, sexual abuse and endangering thewelfare of a child. In July 2006, the People resubmitted defendant's case to a second grand jury, whichreturned a 17-count superseding indictment. That indictment echoed the majority of the original countsbut also contained additional charges, including two counts of perjury in the first degree relating todefendant's testimony before the first grand jury.
Thereafter, a jury found defendant guilty of three counts of sexual abuse in the third degree, onecount of sexual abuse in the first degree, one count of attempted rape in the first [*2]degree, one count of attempted rape in the third degree, one count ofendangering the welfare of a child and one count of perjury in the first degree. Defendant's CPL 330.30motion seeking to set aside the verdict was denied. Subsequently, defendant was sentenced to twoconcurrent prison terms of six years for the first degree sexual abuse and attempted rape convictions, aswell as three years of postrelease supervision, a concurrent prison term of 2
Initially, we are unpersuaded by defendant's challenges to County Court's denial of his pretrialmotion to dismiss the superseding indictment. Notably, defendant maintains that the indictment wasdefective because the statements made by the victim at the second grand jury presentation wereallegedly inconsistent with her testimony before the first grand jury. County Court opined that anyinconsistencies were not substantial and, importantly, case law indicates that credibility issues such asthose argued herein "should more appropriately be reserved for presentation to the petit jury"(People v Suarez, 122 AD2d 861, 862 [1986], lv denied 68 NY2d 817 [1986];see People v Jennings, 69 NY2d 103, 115 [1986]). In any event, inasmuch as the minutes ofthe victim's testimony from either grand jury appearance do not appear in the record, this Court isprecluded from any meaningful review of this particular contention (see People v Fehr, 45AD3d 920, 923 [2007], lv denied 10 NY3d 764 [2008]; People v Alexander, 37AD3d 908, 909 [2007], lv denied 9 NY3d 839 [2007]).
With respect to defendant's further argument on his pretrial motion, we do not agree that CountyCourt should have dismissed as time-barred the count in the superseding indictment that chargedendangering the welfare of a child for a continuous period of time until the summer of 2005. While it istrue that a charge of endangering the welfare of a child (see Penal Law § 260.10) mustbe commenced within two years from the commission of the act (see CPL 30.10 [2] [c]), sucha crime can nonetheless constitute a "continuing offense" (People v Keindl, 68 NY2d 410, 421[1986]) so that the statute of limitations does not begin to run "until after the last act of abuse hadoccurred" (People v DeLong, 206 AD2d 914, 916 [1994]). Here, relying upon the languageof the indictment concerning this particular charge, which indicated that the last incident occurred duringthe summer of 2005, County Court properly denied defendant's motion to dismiss.
Next, we consider defendant's various contentions that County Court improperly denied hispostverdict motion to set aside the verdict pursuant to CPL 330.30. According to defendant, theevidence with respect to the convictions for sexual abuse in the first degree and attempted rape in thefirst degree was deficient in that the People failed to produce legally sufficient proof of the element offorcible compulsion to sustain those counts. In reviewing the legal sufficiency of a verdict, this Court"must determine whether there is any valid line of reasoning and permissible inferences which could leada rational person to the conclusion reached by the jury . . . and as a matter of law satisfythe proof and burden requirements for every element of the crime[s] charged" (People vBleakley, 69 NY2d 490, 495 [1987] [citation omitted]). Here, both challenged counts required theaccused to complete the crime through forcible compulsion—i.e., "use of physical force" or athreat of force (Penal Law § 130.00 [8]; see Penal Law § 130.35 [1]; §130.65 [1]). " '[T]he element of forcible compulsion is examined through the state of mind produced inthe victim, and relevant factors include the age of the victim, the relative size and strength of thedefendant and victim, and the nature of the defendant's relationship to the victim' " (People vVal, 38 AD3d 928, 929 [2007], lv denied 9 NY3d 852 [2007], quoting People vSehn, 295 AD2d 749, 750 [2002], lv denied 98 NY2d 732 [2002]).
Here, the victim, who was 15 years old at the time of the alleged crimes, testified that onSeptember 30, 2005, defendant took her out of school so she could accompany him on an errand and,en route, he tried to place his hands down her pants. She stated that when she verbally refused hisadvances, he threatened to pull the van over. The victim further testified that she was afraid and, whenthey stopped at a park, defendant proceeded with more sexual touching. He sat behind her on a picnictable and, despite her pleas for him to stop, he put his hands down her pants and inserted his fingers inher vagina. The victim also testified that, on October 3, 2005, defendant followed her into thebathroom, grabbed her arm, pulled the side of her pants down with the other hand, and attempted toinsert his penis into her vagina. The victim further indicated that she tried to push him away but he pulledher back and she only got away after her continued resistance broke his grasp.
Viewing the evidence in the light most favorable to the People (see People v Cabey, 85NY2d 417, 420 [1995]), we find that the People presented sufficient evidence so that "a rational jurorcould have concluded that the element[ ] of [forcible compulsion was] established beyond a reasonabledoubt" (People v Val, 38 AD3d at 939). Notably, for a sex offense to be predicated onforcible compulsion "neither physical injury nor screaming or crying out is required" (People vAlford, 287 AD2d 884, 886 [2001], lv denied 97 NY2d 750 [2002]). Given the proof of,among other things, the victim's age, her testimony as to intimidation by defendant and her fear of him,we find no basis for reversal (see People v Brown, 39 AD3d 886, 888 [2007], lvdenied 9 NY3d 873 [2007]).
Furthermore, we are similarly unpersuaded that the jury's verdict is against the weight of theevidence. While the victim's testimony had minor inconsistencies, any real inconsistency was collateralto the main issues and, thus, did not render the testimony " 'so unworthy of belief as to be incredible asa matter of law' " (People v Wright, 214 AD2d 759, 762 [1995], lv denied 86 NY2d805 [1995], quoting People v Carthrens, 171 AD2d 387, 392 [1991]; see People vAllen, 13 AD3d 892, 894 [2004], lv denied 4 NY3d 883 [2005]). Moreover, thetestimony of other witnesses at trial clarified and reconciled certain of those inconsistencies andprovided further support for the jury's verdict.
We next find no error in County Court's summary dismissal of defendant's request to set aside theverdict on the basis of juror misconduct pursuant to CPL 330.30 (2). Although two dismissed alternatejurors claimed to have seen a person signaling to the victim during her testimony, this precise issue wasaddressed by the court and counsel on the record at the time of trial; therefore, defendant admittedlyhad knowledge of the matter prior to the verdict (see People v Walsh, 222 AD2d 735, 736[1995], lv denied 88 NY2d 855 [1996]). In any event, defendant failed to offer anynonconclusory "allegations that the incident in question constituted an 'improper influence' on the juryverdict" (People v McMillan, 197 AD2d 476, 477 [1993], lv denied 82 NY2d 927[1994] [citation omitted]).
As for defendant's claim that his CPL 330.30 motion should have been granted on the basis of anallegedly repugnant verdict, we note that this issue is unpreserved for appellate review inasmuch asdefendant failed to raise it prior to the discharge of the jury (see People v Alfaro, 66 NY2d985, 987 [1985]; People v St. Paul, 3 AD3d 604, 605 [2004], lvs denied 2 NY3d761, 764, 765 [2004], lv denied 5 NY3d 766 [2005]). Nonetheless, the result would be nodifferent if we [*3]were to consider this issue in the interest of justice.The jury did not reach an inherently self-contradictory verdict when it convicted defendant of twocounts requiring the element of forcible compulsion, yet found defendant not guilty of one of the countsof endangering the welfare of a child accusing him of a course of conduct such as, among other things,throwing an apple at the victim, slamming doors in her presence and yelling at her. We agree withCounty Court's conclusion that it was permissible for the jury to consider that proof in the context offinding an implied threat for purposes of the element of forcible compulsion even if the conduct, standingalone, did not rise to the level of endangering the welfare of a child.
Defendant additionally asserts that he was denied the effective assistance of counsel. However, ourreview of the record establishes that defense counsel, among other things, made proper pretrial andposttrial motions, secured the dismissal of one count in the indictment prior to jury deliberations,convinced the jury to acquit defendant on nine counts of a 17-count indictment, raised appropriateobjections, vigorously cross-examined the victim, and achieved a ruling favorable to defendantregarding the grand jury minutes that were read to the jury with respect to the perjury counts (seePeople v Houghtaling, 14 AD3d 879, 883 [2005], lv denied 4 NY3d 831 [2005];People v Rust, 233 AD2d 778, 780 [1996], lv denied 89 NY2d 988 [1997]). Takenas a whole, we conclude that defendant received "meaningful representation" (People vJackson, 48 AD3d 891, 894 [2008], lv denied 10 NY3d 841 [2008]).
Finally, upon review of defendant's challenges to the sentence imposed, we find them lacking inmerit. Given defendant's conduct towards this child and his willingness to perjure himself before thegrand jury, County Court did not abuse its discretion in imposing the sentence and there are noextraordinary circumstances warranting a reduction in the interest of justice (see People vAdams, 51 AD3d 1136 [2008]; People v Hammond, 45 AD3d 1060, 1061 [2007]).
The remaining arguments advanced by defendant, including his challenges to County Court'sSandoval and Rape Shield Law (see CPL 60.42) rulings, have been examined andfound to be unpersuasive.
Peters, Carpinello, Kane and Stein, JJ., concur. Ordered that the judgment is affirmed.