| People v Heil |
| 2010 NY Slip Op 01279 [70 AD3d 1490] |
| February 11, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v David Heil,Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Nicole M. Fantigrossi of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Alex R. Renzi, J.), renderedNovember 21, 2007. The judgment convicted defendant, upon a jury verdict, of sexual abuse inthe first degree (two counts) and endangering the welfare of a child.
It is hereby ordered that the judgment so appealed from is unanimously reversed on the lawand as a matter of discretion in the interest of justice, that part of the motion seeking to dismisscount three of the indictment is granted, that count of the indictment is dismissed, and a new trialis granted on counts one and two of the indictment.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict oftwo counts of sexual abuse in the first degree (Penal Law § 130.65 [3]) and endangeringthe welfare of a child (§ 260.10 [1]). The conviction stems from defendant's alleged abusein April 2000 of a third-grade student in an elementary school where defendant was employed asa teacher. Defendant failed to preserve for our review his contention that the conviction of thesexual abuse counts is not supported by legally sufficient evidence (see People v Gray,86 NY2d 10, 19 [1995]). In any event, that contention is without merit (see generally Peoplev Bleakley, 69 NY2d 490, 495 [1987]).
We reject the contention of defendant that County Court erred in denying those parts of hisomnibus motion seeking to dismiss the counts of sexual abuse as time-barred. The period oflimitation for those felonies is five years (see CPL 30.10 [2] [b]), but prosecutionsinvolving a sexual offense under Penal Law article 130 that are committed against a child lessthan 18 years of age "shall not begin to run until the child has reached the age of eighteen or theoffense is reported to a law enforcement agency or statewide central register of child abuse andmaltreatment, whichever occurs earlier" (CPL 30.10 [3] [f]). Here, the offense was not reportedto law enforcement until October 2006 and defendant was indicted one month later, well withinthe applicable period of limitation (see CPL 30.10 [2] [b]; [3] [f]). We reject defendant'scontention that the period of limitation began to run in April 2000, when the school district wasnotified of the incident, inasmuch as the school district was not an agent of a law enforcementagency (cf. People v Rivera, 298 AD2d 612, 614 [2002], lv denied 99 NY2d[*2]619 [2003]). Defendant's related due process contention issimilarly without merit (cf. id.). We agree with defendant, however, that the court erredin denying that part of defendant's omnibus motion seeking to dismiss the count of endangeringthe welfare of a child as time-barred. The period of limitation for that misdemeanor was twoyears (see CPL 30.10 [2] [c]), and the tolling provision of CPL 30.10 (3) (f) does notapply to that offense (see generally People v Rogner, 265 AD2d 688 [1999]). Wetherefore dismiss the third count of the indictment.
Defendant failed to preserve for our review his contention that certain testimony of a teacherwas improperly admitted because it was hearsay and improper opinion testimony. "A party'sfailure to specify the basis for [his or her] general objection renders [the party's] argumentunpreserved for . . . [appellate] review" (People v Everson, 100 NY2d 609,610 [2003]; see People v Jacque, 2AD3d 1362 [2003], lv denied 2 NY3d 741 [2004]; People v Pierre, 300AD2d 1070 [2002], lv denied 99 NY2d 631 [2003]). We nevertheless exercise our powerto review that contention as a matter of discretion in the interest of justice (see CPL470.15 [6] [a]), and we agree with defendant that the court erred in admitting that testimony. Theteacher testified that she entered defendant's classroom after school hours, after the allegedsexual abuse occurred. The testimony of the teacher concerning her observations, i.e., that thelights were not on in the room and the victim was sitting on defendant's lap at defendant's desk,was neither hearsay nor was it improper. The teacher then testified that she "felt uncomfortable"after she left the classroom, whereupon the court sustained defense counsel's objection andinstructed the jury to disregard that testimony. The court erred, however, in then allowing theteacher to testify that she told another teacher that she had left defendant's classroom and "feltreally uncomfortable," inasmuch as that testimony constituted inadmissible hearsay.
Contrary to the People's contention, the error is not harmless. The evidence againstdefendant is not overwhelming and, because the teacher's testimony is highly prejudicial, there isa significant probability that defendant would have been acquitted if not for the error (seegenerally People v Crimmins, 36 NY2d 230, 241-242 [1975]). The prosecutor elicitedtestimony from the teacher concerning the various teaching awards and accolades that she hadreceived in her lengthy teaching career. The testimony of the teacher with respect to how she feltafter leaving defendant's classroom was not relevant, but it may have led the jury to find that, ifsuch a distinguished teacher believed that something was amiss between defendant and thevictim, then it was more likely than not the abuse actually occurred. We therefore grant a newtrial on counts one and two of the indictment. In light of our determination, we do not reachdefendant's remaining contentions. Present—Centra, J.P., Peradotto, Carni, Pine andGorski, JJ.