| People v Goff |
| 2009 NY Slip Op 09915 [68 AD3d 1796] |
| December 30, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Glen M. Goff,Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Geoffrey Kaeuper of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (John R. Schwartz, A.J.), renderedMay 31, 2007. The judgment convicted defendant, upon a jury verdict, of sexual abuse in thesecond degree (three counts) and criminal sexual act in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously modified on the factsby reversing those parts convicting defendant of sexual abuse in the second degree under countthree of the indictment and criminal sexual act in the first degree and dismissing counts three andfour of the indictment and as modified the judgment is affirmed, and the matter is remitted toMonroe County Court for proceedings pursuant to CPL 470.45.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofthree counts of sexual abuse in the second degree (Penal Law § 130.60 [2]) and one countof criminal sexual act in the first degree (§ 130.50 [4]). Defendant failed to preserve forour review his contention that the conviction under the third count of the indictment, chargingsexual abuse in the second degree, and under the fourth count of the indictment, chargingcriminal sexual act in the first degree, is not supported by legally sufficient evidence (seePeople v Gray, 86 NY2d 10, 19 [1995]). Viewing the evidence in light of the elements ofthose counts as charged to the jury (seePeople v Danielson, 9 NY3d 342, 349 [2007]), we agree with defendant, however, thatthe verdict with respect to both of those counts is against the weight of the evidence (seegenerally People v Bleakley, 69 NY2d 490, 495 [1987]), and we therefore modify thejudgment accordingly. Where, as here, a different finding from that of the jury would not havebeen unreasonable, we must " 'weigh the relative probative force of conflicting testimony and therelative strength of conflicting inferences that may be drawn from the testimony' " and, if weconclude that the trier of fact failed to give the evidence the weight it should be accorded, wemay set aside the verdict (id.).
Here, the two counts in question concerned one incident that, according to County Court'sjury instruction, occurred "sometime after Christmas 2004 and around or during the first week ofJanuary 2005." During that incident, defendant allegedly touched the complainant's penis andengaged in oral sexual conduct. The complainant testified that the incident occurred afterChristmas break and on a Tuesday after school, when his mother was working and he was homealone with defendant. His mother, however, testified that she ended her job on Christmas Eveand that, after that date, either she or her husband would meet the complainant at his bus stop on[*2]Tuesdays. The complainant became confused oncross-examination at trial, and he testified that one of his parents would in fact meet him at hisbus stop after Christmas and that he therefore would not have been alone with defendant afterschool. In addition, the complainant admitted that he told the police that defendant had not usedhis mouth during any incident. The complainant was unable to recall many details concerningthe incident and gave conflicting testimony with respect to those details that he did recall,including defendant's position on the couch (see People v Wallace, 306 AD2d 802, 803[2003]). We thus conclude that the jury failed to give the evidence the weight it should beaccorded with respect to the third and fourth counts of the indictment (see generallyBleakley, 69 NY2d at 495). However, viewing the evidence in light of the elements of theremaining counts as charged to the jury (see Danielson, 9 NY3d at 349), we furtherconclude that the verdict with respect to those counts is not against the weight of the evidence(see generally Bleakley, 69 NY2d at 495).
Contrary to the contention of defendant, the court properly curtailed his cross-examination ofthe complainant because the court did not thereby " 'keep[ ] from the jury relevant and importantfacts bearing on the trustworthiness of crucial testimony' " (People v Dennard, 39 AD3d 1277, 1279 [2007], lv denied9 NY3d 842 [2007]). Indeed, the length of defendant's cross-examination of the complainant wasapproximately four times that of the prosecutor's direct examination of him, and defendant failedto identify any areas of questioning that he was unable to cover. The further contention ofdefendant that the court demonstrated bias against him is not preserved for our review (see People v Wright, 34 AD3d1274, 1275 [2006], lv denied 8 NY3d 886 [2007]; People v Tricic, 34 AD3d 1319,1320 [2006], lv denied 8 NY3d 850 [2007]) and, in any event, that contention is withoutmerit. Rather, the court properly precluded defendant from asking cumulative and argumentativequestions (see People v Martich, 30AD3d 305 [2006], lv denied 7 NY3d 868 [2006]). Present—Scudder, P.J.,Hurlbutt, Smith and Centra, JJ.