| People v Workman |
| 2008 NY Slip Op 08801 [56 AD3d 1155] |
| November 14, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Anthony G.Workman, Sr., Appellant. |
—[*1] Anthony G. Workman, Sr., defendant-appellant pro se. Michael J. Violante, District Attorney, Lockport (Thomas H. Brandt of counsel), forrespondent.
Appeal from a judgment of the Niagara County Court (Peter L. Broderick, Sr., J.), renderedApril 27, 2006. The judgment convicted defendant, upon a jury verdict, of course of sexualconduct against a child in the first degree, rape in the first degree (two counts), rape in the seconddegree (two counts), criminal sexual act in the second degree and sexual abuse in the seconddegree.
It is hereby ordered that the judgment so appealed from is unanimously modified as a matterof discretion in the interest of justice and on the law by reversing that part convicting defendantof course of sexual conduct against a child in the first degree and dismissing count one of theindictment and as modified the judgment is affirmed, and the matter is remitted to NiagaraCounty Court for resentencing on counts two through seven of the indictment (see CPL470.20 [3]).
Memorandum: On appeal from a judgment convicting him upon a jury verdict of, inter alia,course of sexual conduct against a child in the first degree (Penal Law § 130.75 [1] [a])and two counts each of rape in the first degree (§ 130.35 [1]) and rape in the second degree(§ 130.30 [1]), defendant contends in his main brief and pro se supplemental brief that theevidence is legally insufficient to support the conviction of any crime in which sexual intercourseis an element because the People failed to prove that he engaged in sexual intercourse with thevictim. We reject that contention. The victim, who was 17 years old at the time of trial, testifiedthat defendant "had sex" with her on two occasions, and she distinguished those two incidentsfrom forcible oral sexual abuse and forcible touching. The jury thus could reasonably haveinferred that defendant engaged in sexual intercourse with the victim (cf. People vCarroll, 95 NY2d 375, 383 [2000];see generally People v Calabria, 3 NY3d 80, 81-82 [2004]; People v Bleakley,69 NY2d 490, 495 [1987]). We conclude, however, that the evidence is legally insufficient tosupport the conviction of course of sexual conduct against a child in the first degree under PenalLaw § 130.75 (1) (a). That Penal Law section requires evidence that, over at least athree-month period, defendant engaged "in two or more acts of sexual conduct, which includes atleast one act of sexual intercourse, oral sexual conduct, anal sexual conduct or aggravated sexualcontact, with a child [*2]less than eleven years old." Here, therewas no evidence that defendant engaged in any act other than forcible touching before the victimwas 11 years old. We reach this issue sua sponte, as a matter of discretion in the interest ofjustice (see CPL 470.15 [6] [a]), and we conclude that the part of the judgmentconvicting defendant of course of sexual conduct against a child in the first degree must bereversed on the law based on the legal insufficiency of the evidence with respect thereto. Wetherefore modify the judgment accordingly.
We further reject defendant's contention that County Court erred in admitting in evidence thetestimony of the victim and her brother concerning four instances of uncharged sexual abuse bydefendant. Although evidence of uncharged crimes is inadmissible to "show defendant's badcharacter or his propensity towards crime" (People v Lewis, 69 NY2d 321, 325 [1987]),such evidence was admissible in this case "to complete the narrative of the events charged in theindictment . . . , and it also provided necessary background information" (People v Bassett, 55 AD3d 1434,1436 [2008]). Here, the victim's brother testified that the victim disclosed the abuse to him afterhe confronted defendant concerning an uncharged instance of sexual touching. Further, thevictim's testimony concerning uncharged acts of sexual abuse that preceded the events charged inthe indictment was properly admitted because the details of the prior abuse, including thefrequency of the abuse, placed in context her failure to disclose the abuse in a timely manner, andit established that the sexual abuse had been ongoing and had escalated. We note in any eventthat the court repeatedly instructed the jury that the testimony concerning the prior sexual abusewas admitted in evidence solely to establish when the abuse began, thereby minimizing anyprejudice to defendant (see generallyPeople v Barner, 30 AD3d 1091, 1092 [2006], lv denied 7 NY3d 809 [2006]; People v Neloms, 8 AD3d 136[2004], lv denied 3 NY3d 710 [2004]; People v McCullough, 8 AD3d 1122 [2004], lv denied 3NY3d 709 [2004]).
We agree with defendant, however, that the court erred in admitting in evidence thetestimony of the boyfriend of the victim concerning her disclosure of the sexual abuse two yearsafter the last incident of abuse. The court admitted the testimony as a prompt outcry, inasmuch as"evidence that a victim of sexual assault promptly complained about the incident is admissible tocorroborate the allegation that an assault took place" (People v McDaniel, 81 NY2d 10,16 [1993]). "[P]romptness is a relative concept dependent on the facts" (id. at 17), and weagree with defendant that the victim's disclosure in this case was not prompt. As noted, thevictim made the disclosure two years after the last incident of abuse, and the record establishesthat she had been living away from defendant for a period of time before making the disclosureand had not received any threats that prevented her from disclosing the abuse (see generallyPeople v Kornowski, 178 AD2d 984, 984-985 [1991], lv denied 89 NY2d 1096[1997]). Nevertheless, we conclude that the error in the admission of the testimony of thevictim's boyfriend is harmless because his testimony " 'mirrored evidence [that was] disclosed tothe jury without objection' " (People vWalek, 28 AD3d 1246, 1247 [2006], lv denied 7 NY3d 764 [2006]).
Finally, we have reviewed the remaining contentions of defendant in his pro se supplementalbrief and conclude that neither requires reversal. Present—Hurlbutt, J.P., Centra,Peradotto, Green and Gorski, JJ.