| People v Stewart |
| 2008 NY Slip Op 10233 [57 AD3d 1312] |
| December 31, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Charles A.Stewart, Appellant. |
—[*1] David S. Hartnett, District Attorney, Cortland (Wendy L. Franklin of counsel), forrespondent.
Malone Jr., J. Appeal from a judgment of the County Court of Cortland County (Ames, J.),rendered June 26, 2007, upon a verdict convicting defendant of the crimes of sexual abuse in the firstdegree and endangering the welfare of a child.
When this case was previously before this Court, we reversed defendant's convictions of rape inthe first degree (two counts), sodomy in the first degree (two counts), sexual abuse in the first degreeand endangering the welfare of a child and remitted the matter to County Court for a new trial (20AD3d 769 [2005]). Thereafter, in conjunction with a proceeding commenced in this Court bydefendant seeking to prohibit his retrial, we granted a temporary stay in the criminal action on March 8,2006. The stay was denied by order of this Court on April 21, 2006 and the petition was dismissed onNovember 30, 2006 (Matter of Stewart vHartnett, 34 AD3d 1134 [2006], appeal dismissed 8 NY3d 936 [2007]).
Proceedings continued before County Court and, in February 2007, defendant's motion to dismissthe indictment on double jeopardy grounds was denied. In March 2007, defendant moved to dismissthe indictment on statutory speedy trial grounds, but this motion was also denied. A new trial wasconducted and, at its conclusion, defendant was acquitted of the rape and sodomy charges, but wasconvicted of sexual abuse in the first degree and endangering the [*2]welfare of a child. He was sentenced to five years in prison, to befollowed by three years of postrelease supervision, on the sexual abuse charge, and one year in jail onthe endangering the welfare of a child charge, to run concurrently. He was also ordered to payrestitution. Defendant now appeals.
Initially, we are unpersuaded by defendant's purported double jeopardy claims. First, he assertsthat, because he had already served his full sentence for his conviction of endangering the welfare of achild before his convictions were reversed, his retrial on that count was a double jeopardy violation.This argument misapprehends the basis for the dismissal of charges under similar circumstances (seee.g. People v Flynn, 79 NY2d 879, 882 [1992]; People v Burwell, 53 NY2d 849, 851[1981]; People v Allen, 39 NY2d 916, 917-918 [1976]; People v Simmons, 32NY2d 250, 253 [1973]; People v Scala, 26 NY2d 753, 754 [1970]; People vKvalheim, 17 NY2d 510, 511 [1966]). Such a result is not a matter of double jeopardy, butinstead relates to judicial economy and other nonconstitutional considerations (see e.g. People vBurwell, 53 NY2d at 851; see generally CPL 470.20 [1]; People v Allen, 39NY2d at 917-918; People v Roopchand, 107 AD2d 35, 38 [1985], affd 65 NY2d837 [1985]). In any event, we find that the crime of endangering the welfare of a child is a serious crimeand the inclusion of that count with defendant's other charged crimes upon his new trial was notimproper (see People v Allen, 39 NY2d at 917-918). Furthermore, we reject defendant'ssecond asserted basis for a violation of his right against double jeopardy inasmuch as he has failed todemonstrate that the prosecution's use of defendant's silence against him during his first trial was"conducted in a deliberate attempt to provoke him to move for a mistrial" (Matter of DeFilippo v Rooney, 11 NY3d775, 776 [2008]; see Matter of Gorghanv DeAngelis, 7 NY3d 470, 473-474 [2006]).
Defendant next contends that County Court erred in failing to dismiss the indictment on the basis ofa CPL 30.30 speedy trial violation following our reversal of his prior convictions. When a defendant isaccused of a felony, the People must declare their readiness for trial within six months of thecommencement of the action (see CPL 30.30 [1] [a]). Upon the reversal of a conviction andorder for a new trial, the commencement of the action is deemed to have been on "the date the orderoccasioning a retrial becomes final" (CPL 30.30 [5] [a]). Here, however, defendant argues only that theperiod from the denial of the stay on April 21, 2006 until the scheduling conference held on January 12,2007 was chargeable to the People, and that their failure to declare readiness for trial within that timeperiod mandates dismissal of the indictment.
Once a defendant demonstrates that a delay greater than six months occurred, it is the People'sburden to prove that they are entitled to exclusions of time during the period between commencementand their declaration of readiness (see People v Cortes, 80 NY2d 201, 216 [1992];People v Berkowitz, 50 NY2d 333, 349 [1980]). Such excludable time includes "reasonableperiod[s] of delay resulting from other proceedings concerning the defendant, including but not limitedto . . . pre-trial motions . . . and the period during which such matters areunder consideration by the court" (CPL 30.30 [4] [a]; see People v Moorhead, 61 NY2d 851,852 [1984]). Under the circumstances of this case, we find that the period relied upon by defendant isnot properly chargeable to the People. Here, defendant commenced a proceeding in this Court andobtained a stay of the criminal action. Even were we to assume that the People were made aware of thedenial of the stay in April 2006—a fact that is not clear from the record—defendant hadmoved County Court in March 2006, at a time when the stay was in effect, for dismissal of theindictment on double jeopardy grounds. County Court reserved decision on that motion during thependency of the stay and was never informed that the stay was lifted in April 2006. Following ourdismissal of defendant's petition in November 2006, a decision on [*3]defendant's motion was issued by County Court in February 2007.Accordingly, the period relied upon by defendant is not chargeable to the People because defendant'spretrial motion was under consideration by County Court (see People v Green, 31 AD3d 1048, 1049 [2006], lv denied 7NY2d 902 [2006]; see also People v Dean, 45 NY2d 651, 657-658 [1978]; People vShannon, 143 AD2d 572, 572-573 [1988], lv denied 73 NY2d 860 [1988]).
Turning to defendant's contention that his convictions were against the weight of the evidenceadduced at trial, we "must weigh conflicting testimony, review any rational inferences that may be drawnfrom the evidence and evaluate the strength of such conclusions" in determining whether the verdict ofguilty was supported by the weight of the credible evidence (People v Danielson, 9 NY3d 342, 348 [2007]). When conducting ourreview, we accord deference to the jury's credibility determinations (see People v Bleakley, 69NY2d 490, 495 [1987]; People vKuykendall, 43 AD3d 493, 495-496 [2007], lv denied 9 NY3d 1007 [2007]).
Upon exercising our factual review power, we find that the jury was justified in convictingdefendant of the crimes of sexual abuse in the first degree and endangering the welfare of a child.Specifically, we are unpersuaded by defendant's argument that the evidence at trial failed to prove thathis conduct was for the purpose of sexual gratification (see Penal Law § 130.00 [3];§ 130.65). Here, although the victim's father and defendant's girlfriend had been in the sameroom with defendant and the victim prior to the incident, defendant waited until he was alone with thevictim—a nine-year-old girl—when he placed his hand on her buttocks. The victimtestified that, while defendant did this, he was "just staring at [her]," and that when she left the roombecause she felt uncomfortable, defendant followed her. The element of sexual gratification can beinferred from the circumstances as well as defendant's conduct and, upon our review of the evidence,we find that such an inference was properly drawn by the jury (see People v Weber, 40 AD3d 1267, 1268 [2007], lv denied 9NY3d 927 [2007], lv dismissed 10 NY3d 845 [2008]; see People v Hill, 34 AD3d 1130, 1131-1132 [2006]).
We have considered defendant's remaining arguments and find no basis for overturning thejudgment of conviction.
Cardona, P.J., Carpinello, Lahtinen and Kane, JJ., concur. Ordered that the judgment is affirmed.