| People v Hebert |
| 2009 NY Slip Op 09993 [68 AD3d 1530] |
| December 31, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Manuel G.Hebert, Appellant. |
—[*1] James E. Conboy, District Attorney, Fonda (Kelli P. McCoski of counsel), forrespondent.
Lahtinen, J. Appeal from a judgment of the County Court of Montgomery County (Catena,J.), rendered August 8, 2007, upon a verdict convicting defendant of the crimes of criminalsexual act in the second degree (nine counts), rape in the second degree (three counts), criminalsexual act in the third degree and rape in the third degree.
Defendant allegedly had sexual contact—oral sex and sexual intercourse—withhis paramour's daughter on a variety of dates between February 2002 and April 2005 when thevictim's age ranged from 12 to 15 years. As a result, defendant was charged in a 14-countindictment with nine counts of criminal sexual act in the second degree, three counts of rape inthe second degree, one count of criminal sexual act in the third degree and one count of rape inthe third degree. A jury found him guilty on all counts. County Court sentenced him to anaggregate prison term of 19
Defendant's argument regarding the legal sufficiency of the evidence was not preserved andthe record reveals no reason to exercise our interest of justice jurisdiction with regard to suchissue (see People v Mann, 63 AD3d 1372, 1373 [2009]). There is, however, nopreservation requirement as to defendant's weight of the evidence argument (see People vDanielson, 9 NY3d 342, 348 [2007]). Weight of the evidence review is "a two-step approachthat requires courts to [*2]first determine whether, based on allthe credible evidence, a different finding would not have been unreasonable," and, if that step issatisfied, "then the appellate court must, like the trier of fact below, weigh the relative probativeforce of conflicting testimony and the relative strength of conflicting inferences that may bedrawn from the testimony" (People v Romero, 7 NY3d 633, 643 [2006] [internalquotation marks and citations omitted]; see People v Danielson, 9 NY3d at 348). Inconducting this review, "[g]reat deference is accorded to the fact-finder's opportunity to view thewitnesses, hear the testimony and observe demeanor" (People v Bleakley, 69 NY2d 490,495 [1987]).
A different conclusion would not have been unreasonable in this case and, thus, we willweigh the evidence. Since the age element of the crimes was not disputed, the focus of the proofwas on whether the alleged contact occurred. The victim testified in detail regarding the sexualactivities. She was able to tie some incidents to specific dates because they occurred, forexample, on her birthday or on defendant's birthday. A phone call between the victim anddefendant, which police arranged for the victim to record, contained several statements bydefendant strongly indicating that the sexual activity had occurred. One example is this exchangeearly in the call:
"Victim: [T]he cops are questioning me about you having sex with me.
"Defendant: You want me to go to jail forever or what?
"Victim: No but, what do I . . . what do I say? I mean I'm like shaking rightnow cuz the cop just came here.
"Defendant: Just tell them nothing, nothing, nothing that's it. They can't pressure you[victim's name]. Okay?
"Victim: So now I have to just do like, just cover you?
"Defendant: Yeah."
Defendant testified in his own defense denying that the contact occurred and attempting toexplain his comments in the recorded phone call. He further related that shortly before makingthe allegations against him, the victim had presented significant disciplinary problems as shebegan a relationship with a new boyfriend. Inconsistencies in the victim's story were pointed outand a former close friend of the victim testified that she had a poor reputation for veracity. Wediscern no reason in this record to disregard the credibility determinations made by the jury and,upon weighing and considering the proof, we are unpersuaded that the verdict was against theweight of the evidence.
Defendant contends that County Court delivered an unbalanced interested witness charge.We cannot agree. County Court's charge mirrored the language recommended in the pattern jurycharge (see CJI2d[NY] Credibility of Witnesses). The court's statement to the jury aspart of the charge that defendant (who had testified) was an interested witness does not requirereversal (see People v Agosto, 73 NY2d 963, 967 [1989]; People v Ochs, 3NY2d 54, 56 [1957]). County Court was not required under the circumstances to specificallyname the victim as an interested witness (see People v Inniss, 83 NY2d 653, 659 [1994];People v Hunter, 55 AD3d 1052, 1054 [2008], lv denied 11 NY3d 898 [2008];People v Diaz, 150 AD2d 885, 886 [1989], [*3]lvdenied 74 NY2d 808 [1989]).
We find no merit in defendant's assertion that it was error to charge the jury using "on orabout" language regarding the dates of the crimes alleged in counts 2, 5, 7 and 8 of theindictment. The indictment alleged that the crimes in those counts occurred "on or about" certaindates (i.e., April 11, 2002 [count 2], April 11, 2003 [count 5], April 11, 2004 [counts 7 and 8])and, at trial, the proof placed the crimes as occurring on those specific dates. Using the languagein the instructions to the jury that the alleged conduct occurred "on or about" rather than just"on" those dates did not prejudice defendant on the merits or otherwise deprive him of a fair trial(cf. People v Sanchez, 84 NY2d 440, 445 [1994]; People v Williams, 24 AD3d882, 884 [2005], lv denied 6 NY3d 854 [2006]).
Defendant argues that the method of jury selection was improper. After the panel had beenquestioned, County Court had the parties exercise challenges for cause and then peremptorychallenges on a juror-by-juror basis. The order of inquiry for each juror, before moving to thenext juror, was: prosecutor challenge for cause; defense challenge for cause; prosecutorperemptory, defense peremptory. Defendant focuses his argument on appeal to the challenges forcause. However, defendant's objection before County Court was with respect to using thejuror-by-juror procedure for peremptory challenges. The use of a juror-by-juror procedure forperemptory challenges has been upheld (see People v Alston, 88 NY2d 519, 527-529[1996]). Although the argument as to the juror-by-juror method regarding challenges for causewas not preserved, we nevertheless note that such procedure would not constitute a reversibleerror since it does not run afoul of the rationale undergirding the statutory requirements (seePeople v Powell, 13 AD3d 975, 977 [2004], lv denied 4 NY3d 889 [2005]; seealso People v Alston, 88 NY2d at 527 [observing that it had been acceptable at common lawand under the former statutory scheme to employ a procedure where "each individual juror wasput on the stand, questioned, and subjected to both prosecution and defense challenges for causeand then peremptory challenges"]).
The remaining arguments raised in defendant's brief do not require extended discussion. Thefailure to request a missing witness charge regarding a psychologist who examined the victimdid not, under the circumstances of this case, constitute the ineffective assistance of counsel(see People v Peake, 14 AD3d 936, 937-938 [2005]). It is not even clear from this recordthat such a charge would have been appropriate (see generally People v Savinon, 100NY2d 192 [2003]). The prosecutor's improper question during cross-examination of defendant,which mischaracterized a statement in a psychologist's report, did not mandate a mistrial,particularly in light of the timely and clear curative instruction by County Court (see Peoplev Delaney, 42 AD3d 820, 822 [2007], lv denied 9 NY3d 922 [2007]; People vKeppler, 92 AD2d 1032, 1032 [1983]). The sentence was within County Court's discretionand there are no extraordinary circumstances warranting a reduction thereof (see People vHarden, 6 AD3d 987, 987-988 [2004]).
Finally, we address defendant's contention, submitted after the argument date of this appeal,that his conviction on counts 1 through 6 of the indictment should be reversed because thosecounts charged him with criminal sexual act in the second degree pursuant to Penal Law §130.45 (1) for acts occurring prior to November 1, 2003. "[U]nder the amendments to the 2001Sexual Assault Reform Act which were effective as of November 1, 2003 (L 2003, ch 264,§ 72, as amended), the Penal Law crimes of sodomy were renamed and replaced by thecrimes of [*4]criminal sexual acts" (People v Weaver, 34AD3d 1047, 1048 [2006], lv denied 8 NY3d 928 [2007] [emphasis omitted]). While therenamed crime of criminal sexual act in the second degree added contact between the mouth andanus, which was not listed in the prior definition of deviate sexual intercourse (see id. at1048 n 1), there was no evidence or arguments in this case of mouth to anus contact. This wasnot a case of criminalizing previously innocent conduct of defendant, or otherwise adverselyaffecting his position (see Kellogg v Travis, 100 NY2d 407, 410 [2003]). The proof attrial regarding the oral sexual contact between defendant and the victim was the same conductcriminalized under the statute before it was renamed, and the felony level was not changed norwere any defenses relevant to this case eliminated. Given such facts, as well as the failure totimely object to the use of the statute's new nomenclature, we are unpersuaded to reversedefendant's conviction on these six counts.
Cardona, P.J., Peters, Kane and Stein, JJ., concur. Ordered that the judgment is affirmed.