| People v Clevenstine |
| 2009 NY Slip Op 09556 [68 AD3d 1448] |
| December 24, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York,Respondent, v Richard Clevenstine, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Kenneth C. Weafer of counsel), forrespondent.
Lahtinen, J. Appeal from a judgment of the County Court of Albany County (Breslin, J.),rendered August 28, 2008, upon a verdict convicting defendant of the crimes of rape in thesecond degree (two counts), rape in the third degree (three counts), criminal sexual act in thethird degree, attempted criminal sexual act in the third degree, sexual abuse in the third degreeand endangering the welfare of a child (three counts).
Defendant, who was in his late 50s, befriended a family and used that relationship as ameans to acquire access to the family's two teenage daughters (born in 1990 and 1992), whom heallegedly subjected to various sex-related activities from January 2006 to August 2007. Hisconduct was discovered when his wife accidentally found, on their computer in defendant'sMySpace account, saved instant message communications between defendant and the youngervictim revealing sexually explicit discussions and indicating that the two had engaged in sexualintercourse. She separately confronted the younger victim and defendant, both of whom madecomments consistent with confirming the sexual activity. About a week later, defendant's wifenotified the State Police, and the ensuing investigation eventually resulted in an 11-countsuperseding indictment, charging six felonies and five misdemeanors for various acts allegedlyperpetrated by defendant against the two girls. He was convicted of all 11 counts following ajury trial and sentenced to an aggregate minimum prison term of 24
We find merit in defendant's argument that the time frame alleged in count one of thesuperseding indictment was excessive. "[A] nine-month time frame alleging a noncontinuous actin an accusatory instrument is generally per se unreasonable" (People v Sedlock, 8 NY3d535, 538 [2007]; see People v Beauchamp, 74 NY2d 639, 641 [1989]). Count one assertsa single act of sexual intercourse involving defendant and the younger victim occurring betweenApril 1, 2006 and January 18, 2007. The alleged time frame exceeds nine months. Moreover,during that time, the younger victim was 13 (and turned 14) and her testimony (given when shewas 16) does not reveal significant cognitive difficulties or an inability to recall events. In fact,she was able to set various other acts—including additional instances of sexualintercourse—in much narrower time frames. The People failed to establish a reason for thelong time frame in count one and, under the circumstances, that count should have beendismissed (see People v Bennett, 57 AD3d 688, 690 [2008], lv denied 12 NY3d781 [2009]; People v Irvine, 52 AD3d 866, 867 [2008], lv denied 11 NY3d 737[2008]).
Defendant asserts that his convictions for rape in the third degree as alleged in count threeand endangering the welfare of a child as alleged in count seven were not supported by legallysufficient evidence and were against the weight of the evidence. His general dismissal motionfailed to preserve his legal sufficiency argument (see People v Gibbs, 34 AD3d 1120,1121 [2006]). There is, however, no preservation requirement for our weight of the evidencereview (see People v Mann, 63 AD3d 1372, 1373 [2009]). Defendant contends that therewas no evidence indicating that the conduct constituting endangering the welfare of a childoccurred in early 2006, as alleged in the indictment. While the younger victim's testimony ondirect examination was insufficient as to when the conduct occurred, on redirect she clarified theconduct as occurring in January or February 2006. Defendant further argues that there was noevidence of sexual intercourse in August 2007 as alleged in count three. This argument failssince the younger victim testified that the last time they had sexual intercourse was at defendant'shouse in August 2007, and she specifically recalled that it occurred five days before she wasconfronted by defendant's wife, which occurred on August 13, 2007. We have otherwisereviewed the testimony and evidence in the record as to these and the other crimes of whichdefendant was convicted and, after independently weighing and considering the proof as well asassessing the evidence in light of the elements charged to the jury, we are unpersuaded thatdefendant's convictions on counts 2 to 11 were against the weight of the evidence (see Peoplev Johnson, 10 NY3d 875, 878 [2008]; People v Romero, 7 NY3d 633, 643-644[2006]).
Next, we consider defendant's contention that the computer disk containing the electroniccommunications that occurred between him and the victims via instant message was improperlyadmitted into evidence. Defendant objected to this evidence at trial upon the ground that it hadnot been properly authenticated. "[A]uthenticity is established by proof that the offered evidenceis genuine and that there has been no tampering with it," and "[t]he foundation necessary toestablish these elements may differ according to the nature of the evidence sought to beadmitted" (People v McGee, 49 NY2d 48, 59 [1979]; see Prince, Richardson onEvidence § 4-203 [Farrell 11th ed]). Here, both victims testified that they had engaged ininstant messaging about sexual activities with defendant through the social networking siteMySpace, an investigator from the computer crime unit of the State Police related that he hadretrieved such conversations from the hard drive of the computer used by the victims, a legalcompliance officer for MySpace explained that the messages on the computer disk had beenexchanged by users of accounts created by defendant and the victims, and defendant's wiferecalled the sexually explicit conversations she viewed in defendant's MySpace account while ontheir computer. Such testimony provided ample authentication for admission of this evidence(see People v Lynes, 49 [*2]NY2d 286, 291-293 [1980];People v Pierre, 41 AD3d 289, 291 [2007], lv denied 9 NY3d 880 [2007]; seegenerally Zitter, Annotation, Authentication of Electronically Stored Evidence,Including Text Messages and E-mail, 34 ALR6th 253). Although, as defendant suggested attrial, it was possible that someone else accessed his MySpace account and sent messages underhis user name, County Court properly concluded that, under the facts of this case, the likelihoodof such a scenario presented a factual issue for the jury (see People v Lynes, 49 NY2d at293). To the extent that defendant asserts on appeal another evidentiary ground for not admittingthis evidence, that ground was not preserved since it was not asserted at trial (see e.g. Peoplev Bertone, 16 AD3d 710, 712 [2005], lv denied 5 NY3d 759 [2005]), and ourexamination of the record fails to persuade us to exercise our interest of justice jurisdiction as tosuch issue.
Defendant asserts that it was prejudicial misconduct for the prosecutor to suggest duringsummation that those jurors who were familiar with MySpace could assist those who were notfamiliar with the social networking Web site. This issue was not preserved by an objection to thecomment at trial and, in any event, the isolated comment did not constitute reversible error(see People v McCombs, 18 AD3d 888, 890 [2005]).
The efforts of defendant's counsel, viewed in their entirety and as of the time ofrepresentation, reveal that, contrary to defendant's current contention, he received meaningfulrepresentation (see People v Baldi, 54 NY2d 137, 146-147 [1981]). The remainingarguments have been considered and found unavailing.
Cardona, P.J., Mercure, Spain and Kane, JJ., concur. Ordered that the judgment is modified,on the law, by reversing defendant's conviction of rape in the second degree under count one ofthe superseding indictment; said count dismissed and the sentence imposed thereon vacated; and,as so modified, affirmed.