| People v Beauharnois |
| 2009 NY Slip Op 05885 [64 AD3d 996] |
| July 16, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v JasonBeauharnois, Appellant. |
—[*1] Andrew J. Wylie, District Attorney, Plattsburgh (Chantelle Schember of counsel), forrespondent.
Stein, J. Appeal from a judgment of the Supreme Court (Lawliss, J.), rendered April 28,2008 in Clinton County, upon a verdict convicting defendant of the crimes of sexual abuse in thefirst degree, course of sexual conduct against a child in the first degree, predatory sexual assaultagainst a child and endangering the welfare of a child.
In May 2007, the victim (born in 1995) told a fellow student on the school bus that he "didn'tlike Thursdays because [defendant] touche[d] [him] in a way [he didn't] like." Following thisdisclosure, the victim revealed, over the course of several meetings with the school socialworker, a Department of Social Services caseworker and a police officer, that defendant hadbeen repeatedly touching his genitals since he was six years old and had been anally penetratinghim on a weekly basis for more than a year. Defendant was indicted for sexual abuse in the firstdegree, course of sexual conduct against a child in the first degree, predatory sexual assaultagainst a child and endangering the welfare of a child. After a jury trial, defendant was foundguilty on all counts and was subsequently sentenced to, among other things, an aggregate prisonterm of 32 years to life. Defendant now appeals.
Focusing largely on the victim's credibility, defendant's first contention is that hisconvictions were against the weight of the evidence. Where, as here, a different result would nothave been unreasonable, we must "weigh conflicting testimony, review any rational inferences[*2]that may be drawn from the evidence and evaluate thestrength of such conclusions" in deciding whether, based upon the credible evidence, "the jurywas justified in finding the defendant guilty beyond a reasonable doubt" (People v Danielson, 9 NY3d 342,348 [2007]; see People v Romero, 7NY3d 633, 643 [2006]; People v Bleakley, 69 NY2d 490, 495 [1987]).
Here, the victim testified that, between March 2002 and May 2002, the first of manyincidents of sexual contact occurred when, while his mother was out and his newborn sister wasin another room, defendant summoned the victim to defendant's bedroom, reached inside thevictim's pants and underwear and touched the victim's penis for two or three minutes whilemoving his fingers "back and forth." The victim further testified that, when he was nine yearsold, defendant's sexual conduct toward him progressed from the touching of his genitals to analpenetration. The victim recounted in considerable detail the first such encounter and described acourse of similar activity that recurred almost weekly for more than a year. The victim'stestimony included such particulars as the different positions defendant placed him in, the roomsof the home in which the abuse occurred, defendant's use of lubrication, the various days of theweek on which the abuse took place (depending on defendant's days off during a particularweek), and whether or not his younger sister was in the home at the time. The victim alsotestified in detail regarding the last of these incidents which transpired just days before histwelfth birthday.
With respect to the victim's credibility, we have long recognized that " 'it is not uncommonfor young children to be uncertain and even inconsistent in their trial testimony' " (People v Stewart, 20 AD3d 769,770 [2005], quoting People vRaymo, 19 AD3d 727, 728 [2005], lv denied 5 NY3d 793 [2005]; see People v Riback, 57 AD3d1209, 1213 [2008], lv granted 12 NY3d 790 [2009]; People v Weber, 25 AD3d 919,921 [2006], lv denied 6 NY3d 839 [2006]; People v Wagner, 178 AD2d 679, 680[1991]). Here, the victim clearly and consistently recounted at trial the abuse to which defendanthad subjected him over the course of approximately six years. Furthermore, the inconsistenciesbetween the victim's statements and other evidence regarding when the anal sexual conductbegan bear only on the victim's credibility and do not relate to the material elements of thecharged crimes in view of the time periods alleged in the indictment (see People vRiback, 57 AD3d at 1213; People v Weber, 25 AD3d at 921; People vStewart, 20 AD3d at 770). Although the victim's story was, at times, inconsistent andcontradictory as it emerged from the time of the initial interviews through his testimony on thewitness stand, we cannot say that his trial testimony was utterly incredible or inherentlyunbelievable. In light of the extensive cross-examination and the thorough exploration of thetroublesome aspects of the victim's testimony when contrasted with his prior statements, andaccording " '[g]reat deference' " to the jury's " 'opportunity to view the witnesses, hear thetestimony and observe demeanor' " (People v Romero, 7 NY3d at 644, quotingPeople v Bleakley, 69 NY2d at 495), we find no reason to disturb the jury's clearresolution of the issue of credibility in favor of the victim (see People v Moore, 59 AD3d 809, 810 [2009]; People vRiback, 57 AD3d at 1213).
The testimony of Clark Knutson, the victim's pediatrician who was also qualified as anexpert at trial, substantiated the victim's testimony in significant respects. Knutson examined thevictim within two weeks of the last alleged incident of anal penetration by defendant. Knutsontestified that the victim's anus was patulous—meaning that it "fell openfreely"—and, based upon its overall condition, he opined to a reasonable degree ofmedical certainty that the victim had been repeatedly, forcibly anally penetrated over asignificant period of time. Knutson also confirmed that the victim's ongoing problem with soilinghimself—a circumstance about which a [*3]number ofother witnesses testified at trial—was a consequence of this repeated anal penetration andthe resulting damage to his anus. Knutson, the only medical expert to testify at trial, also clearlyand persuasively repudiated defendant's alternate theory to account for the victim's condition.Accordingly, upon our independent review of the evidence adduced at trial and the inferences tobe drawn therefrom, and according due deference to the jury's resolution of credibility issues, wefind that the verdict as to each count was in accord with the weight of the credible evidence.
Defendant next argues that his conviction on count two—course of sexual conductagainst a child in the first degree (see Penal Law § 130.75 [1] [b])—shouldbe dismissed as a lesser included offense of count three—predatory sexual assault againsta child (see Penal Law § 130.96). We agree.[FN1]In making this determination, we must ascertain whether it is, in the abstract, "impossible tocommit [the greater crime] without concomitantly committing, by the same conduct, [the lesseroffense]" (CPL 1.20 [37]; see 300.30 [4]; see generally People v Glover, 57NY2d 61, 63-64 [1982]).
Pursuant to the subdivision charged here in count two,[FN2]defendant may be found guilty of course of sexual conduct against a child in the first degree if,"over a period of time not less than three months in duration[,] he . . . being [18]years old or more, engage[d] in two or more acts of sexual conduct, which include[d] at least oneact of sexual intercourse, oral sexual conduct, anal sexual conduct or aggravated sexual contact,with a child less than [13] years old" (Penal Law § 130.75 [1] [b]). Similarly, to be guiltyof predatory sexual assault against a child as charged in count three, it must be proven thatdefendant, "being [18] years old or more, . . . commit[ted] the crime of. . . course of sexual conduct against a child in the first degree,[FN3] . . . and the victim is less than [13] years old" (Penal Law § 130.96).
Under the circumstances here, the commission of the crime of course of sexual conductagainst a child in the first degree was an element of the crime of predatory sexual assault against[*4]a child and, indeed, the crimes as charged are essentiallyidentical with respect to their elements (compare Penal Law § 130.75 [1] [b]with Penal Law § 130.96; see generally Donnino, Practice Commentary,McKinney's Cons Laws of NY, Book 39, Penal Law art 130, 2009 Pocket Part, at 127), the onlyvariance between the two being their felony classifications.[FN4]Since it would be impossible for defendant to have committed the crime of predatory sexualassault against a child without concomitantly committing, by the same conduct, course of sexualconduct against a child in the first degree, the latter is a lesser included offense of the former(see CPL 1.20 [37]; People vMiller, 6 NY3d 295, 302-303 [2006]; People v Scott, 61 AD3d 1348, 1349 [2009]).[FN5]
However, we reject defendant's contention that endangering the welfare of a child is a lesserincluded offense of either predatory sexual assault against a child or course of sexual conductagainst a child in the first degree. A conviction of endangering the welfare of a child requiresproof that defendant "knowingly act[ed] in a manner likely to be injurious to the physical, mentalor moral welfare of a child less than [17] years old" (Penal Law § 260.10 [1]), thusrequiring the "demonstration of an element or fact not required" when proving the two greaterconcurrent crimes charged here (People v Green, 56 NY2d 427, 431 [1982]; seePeople v Ford, 76 NY2d 868, 869-870 [1990]; People v Wheeler, 67 NY2d 960, 962[1986]; People v Acevedo, 40 NY2d 701, 706 [1976]).[FN6]
Finally, we are unpersuaded by defendant's claim that the sentences imposed by SupremeCourt were harsh and excessive. "The mere fact that a sentence imposed after trial is greater thanthat offered in connection with plea negotiations is not proof [positive] that defendant waspunished for asserting his right to trial" (People v Simon, 180 AD2d 866, 867 [1992],lv denied 80 NY2d 838 [1992] [citations omitted]; see People v Massey, 45 AD3d 1044, 1048 [2007], lvdenied 9 NY3d 1036 [2008]). Inasmuch as we do not find that the sentences imposed werean abuse of discretion or that extraordinary circumstances exist to warrant a reduction in theinterest of justice, we decline to disturb them (see CPL 470.15 [3] [c]; People v Cruz, 53 AD3d 986, 986[2008]; People v Lowe, 53 AD3d982, 983 [2008]; People vDunton, 30 AD3d 828, 830 [2006], lv denied 7 NY3d 847 [2006]).[*5]
Mercure, J.P., Peters, Malone Jr. and Garry, JJ., concur.Ordered that the judgment is modified, on the law, by reversing defendant's conviction of courseof sexual conduct against a child in the first degree under count two of the indictment; said countdismissed and the sentence imposed thereon vacated; and, as so modified, affirmed.
Footnote 1: We note that defendant failed topreserve this issue by timely request or objection before Supreme Court. However, inasmuch as," '[w]ith respect to inclusory concurrent counts, . . . [a] verdict of guilty upon thegreatest count submitted is deemed a dismissal of every lesser count submitted,' " we will modifythe judgment accordingly (People vHorton, 46 AD3d 1225, 1227 [2007], lv denied 10 NY3d 766 [2008], quotingCPL 300.40 [3] [b]; see CPL 300.40 [4]).
Footnote 2: " 'The impossibility elementspeaks not to all the variations of the greater offense that are detailed in a Penal Lawsection with numerous subdivisions, but only to the subdivision which the particular act oromission referred to in the indictment brings into play' " (People v Miller, 6 NY3d 295, 302 [2006], quoting People vGreen, 56 NY2d 427, 430-431 [1982]).
Footnote 3: As charged here, the crime ofcourse of sexual conduct against a child in the first degree providing the basis for the charge ofpredatory sexual assault against a child was also pursuant to Penal Law § 130.75 (1) (b).
Footnote 4: Such a distinction renderscourse of sexual conduct against a child in the first degree, a class B felony, a crime of a "lessergrade or degree" (CPL 1.20 [37]; see 300.30 [4]) than predatory sexual assault against achild, a class A-II felony (see People v Abrew, 95 NY2d 806, 808 n [2000]).
Footnote 5: Contrary to the People'scontention, this is so even though the time period alleged for the greater offense was shorter thanthat alleged for the lesser offense because the time period alleged for the greater offense fellentirely within that alleged for the lesser offense.
Footnote 6: To the extent that People v Harp (20 AD3d 672, 674[2005], lv denied 5 NY3d 852 [2005]) held otherwise with respect to the crimes ofcourse of sexual conduct against a child in the second degree and endangering the welfare of achild, it should no longer be followed.