| People v Hopkins |
| 2008 NY Slip Op 08364 [56 AD3d 820] |
| November 6, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Ross C.Hopkins, II, Appellant. |
—[*1] Joseph A. McBride, District Attorney, Norwich (Michael J. Genute of counsel), forrespondent.
Kavanagh, J. Appeal from a judgment of the County Court of Chenango County (Sullivan,J.), rendered February 14, 2005, upon a verdict convicting defendant of the crimes of rape in thethird degree (two counts), criminal sexual act in the third degree (three counts) and endangeringthe welfare of a child (three counts).
Defendant was employed as a senior family life specialist at a private residential facility forchildren with mental health, emotional and family issues. It is alleged that, in May and June2004, defendant, at the time 45 years old, engaged in a sexual relationship with a 15-year-oldfemale resident of the facility. After trial, defendant was convicted of rape in the third degree(two counts), criminal sexual act in the third degree (three counts) and endangering the welfare ofa child (three counts). He was subsequently sentenced to an aggregate prison term of 4 to 12years. Defendant now appeals.
Defendant raises numerous challenges to his conviction. Initially, because defendant'scharges were premised upon sexual contact with an underage victim, the victim's testimony didnot require corroboration (see People v Alford, 287 AD2d 884, 886 [2001], lvdenied 97 NY2d 750 [2002]; People v Soulia, 263 AD2d 869, 872 [1999], lvdenied 94 NY2d 829 [1999]).
We find no error in County Court's ruling that allowed the People to introduce evidence[*2]that defendant was previously married to a woman who was18 years old, and with whom he had, prior to their marriage, a sexual relationship. This evidencewas introduced to support the People's theory that defendant used his history with his ex-wife aspart of his seduction of the victim, by assuring her as to the legitimacy of such conduct and thevalidity of their relationship (see People v Alvino, 71 NY2d 233, 241-242 [1987]).
We also find that the People's summation statements, as challenged by defendant, did notdeprive defendant of a fair trial. County Court, in response to defendant's objections regardingthese statements, properly instructed the jury as to the purpose of counsel's final arguments, andthat such statements by counsel were not evidence that could be used in arriving at a verdict. Asfor the claim that the prosecutor improperly characterized testimony and vouched for thecredibility of certain witnesses, these statements, when viewed in their proper context, not onlyrepresented fair comment on the evidence introduced at trial (see People v Grady, 40 AD3d 1368, 1374-1375 [2007], lvdenied 9 NY3d 923 [2007]; Peoplev Edwards, 38 AD3d 1133, 1133-1134 [2007], lv denied 9 NY3d 864 [2007])but, in some instances, were specifically delivered in response to arguments made by defensecounsel in his summation (see People vCherry, 46 AD3d 1234, 1237 [2007], lv denied 10 NY3d 839 [2008]; People v Beyer, 21 AD3d 592, 595[2005], lv denied 6 NY3d 752 [2005]). While references to defendant as a "rapist" and"monster," and descriptions of the time he spent with the victim as "conjugal visits," were clearlyinappropriate, we cannot conclude, in light of the other evidence presented at trial, that suchcomments had any impact on the jury's deliberations or played any role in its final verdict (see People v Hunt, 39 AD3d 961,964 [2007], lv denied 9 NY3d 845 [2007]).
We do find, however, that County Court erred by not allowing defendant to introducetestimony from an employee of the facility as to the victim's reputation at the time of trial fortruthfulness and veracity within that community. Assuming a proper foundation exists, " 'a partyhas a right to call a witness to testify that a key opposing witness, who gave substantive evidenceand was not called for the purposes of impeachment, has a bad reputation in the community fortruth and veracity' " (People vHanley, 5 NY3d 108, 112 [2005], quoting People v Pavao, 59 NY2d 282, 290[1983]; see People v Carter, 31AD3d 1167, 1168 [2006]). While defendant was allowed to give his own assessment of thevictim's reputation for truthfulness and veracity, he was not permitted to call a witness for thispurpose because, as the court stated, this individual was not employed at the facility when thevictim first disclosed the intimate nature of her relationship with defendant and was, therefore,not qualified to give such testimony. This ruling failed to take into account that such testimonywould also be admissible to establish the victim's reputation in the community for truthfulnessand veracity at the time she testified at trial (see People v Garrick, 246 AD2d 478,478-479 [1998], lv denied 92 NY2d 852 [1998]). Since the victim's credibility is an issuenot only when the allegation was initially made, but also when she was called to testify at trial, itwas error not to allow defendant to present such evidence.
While we find this to be error, we cannot conclude, based upon the weight of the otherevidence, that this error served to deprive defendant of a fair trial. The victim, who was 15 yearsold at the time of trial, was a reluctant witness who, by her own admission, still harbored strongfeelings for defendant. Despite these feelings, she testified that, in January 2004, her relationshipwith defendant began when he escorted her and another resident on an authorized trip to a fastfood restaurant located off facility grounds. The victim alleged that, there, defendant told herhow she reminded him of his ex-wife, who he had met when she was but 16 or 17 years old, andwith whom he had an illicit sexual relationship. During this conversation, the victim recalled thatdefendant touched her on her knee and her buttocks, and asked if she was a virgin. Later [*3]defendant began giving her small gifts and, on a daily basis, wroteher "love letters," which he told her to destroy after she had read them. She further described howdefendant gave her a screwdriver, and instructed her how to use it to force open her roomwindow so that she could leave the facility grounds to rendevous with him. The victim describedhow they drove to defendant's home, where they engaged in a variety of sexual acts. The victimalso testified to meeting with defendant on other occasions within the facility where, again, theyhad sexual contact.
John Giglio, associate executive director of the facility, testified that early in 2004, heconfronted defendant with the fact that he had received numerous complaints from other facilitypersonnel about defendant's relationship with the victim and that defendant had been seen havinginappropriate contact with her. Giglio specifically told defendant that staff members had seenhim whispering in the victim's ear and putting his arm around her, and they had complained thatdefendant was found alone with the victim in his office and in her room in the female dormitory.When defendant did not deny that such contact had taken place, Giglio advised him to "back off,"and admonished defendant in writing that such conduct was unacceptable and inappropriate.Giglio also testified that when he received additional complaints and found that the inappropriatecontact had, in fact, continued, he temporarily suspended defendant from his position at thefacility.
Giglio also recounted how facility staff recovered three letters from the victim's room, whichdefendant initially denied but later admitted to writing. The content of these letters beliedefendant's testimony at trial that they were not "love letters," and provide compellingcorroboration of the victim's testimony as to the nature of their relationship. In one, defendantwrote to the victim: "Hello, Princess. How is my love muffin? . . . It feels reallyweird to be this much in love with a 15 year old, but I missed you terribly every minute apartfrom you. . . I will stand by you for the rest of my time on earth . . .You are my oxygen, my water, everything that sustains life . . . I need you. I wantyou. And I love you." Another letter read: "I just don't want to lose you. You are my everything. Ican't wait to see you tonight. I checked the staff and we should have a good night."
In addition, facility personnel testified to actions taken by defendant that the People allegedwere designed to provide him with access to the victim during a time that the victim claims asexual encounter with defendant took place. Specifically, Deborah Minihan testified that on oneoccasion, on a weekend after Memorial Day, defendant asked her to switch positions with him sothat he could serve as the night monitor of the female dormitory. Minihan testified that defendanthad told her that this change in assignments had been approved by supervisory personnel, andthat he was authorized to have access to the female dormitory where the victim resided at thetime. At trial, it was established that such permission had never been given, that defendant hadnot been, as he represented, cleared for this position, and that he was not authorized to have suchaccess to this part of the facility.
Defendant not only admitted at trial that he had written letters to the victim and had given hergifts because he was "infatuated with her," but he also acknowledged that he had, on a previousoccasion, taken the victim and another resident to his home in violation of facility regulations.Therefore, in light of the substantial evidence of defendant's guilt, we cannot say that theproposed testimony regarding the victim's reputation for truthfulness and veracity "couldreasonably have altered the jury's decision" and conclude, based upon all of the evidencepresented, that County Court's error in refusing to allow such testimony is harmless (People v[*4]Hanley, 5 NY3d at 114).
Defendant was not deprived of the meaningful assistance of counsel. While defendant takesissue with his trial counsel's failure to object to the prosecutor's leading questioning of the victim,counsel not only made such objections, but placed a standing objection to such questioning onthe record. The record establishes that trial counsel made cogent opening and closing statements,engaged in effective cross-examination, voiced appropriate objections (see People v Jackson, 48 AD3d891, 893 [2008], lv denied 10 NY3d 841 [2008]) and, in whole, provided defendantwith meaningful representation (see People v Baldi, 54 NY2d 137, 147 [1981]).Defendant's pro se claims regarding counsel's failure to call certain witnesses and access certainrecords of the victim relate to matters outside the record and, as such, should have been thesubject of a CPL article 440 motion (seePeople v Feliz, 51 AD3d 1278, 1279 [2008]; People v Bonelli, 41 AD3d 972, 973 [2007], lv denied 9NY3d 921 [2007]).
We have reviewed defendant's remaining contentions and find them to be without merit.
Peters, J.P., Rose, Lahtinen and Kane, JJ., concur. Ordered that the judgment is affirmed.