| People v Maggio |
| 2010 NY Slip Op 01553 [70 AD3d 1258] |
| February 25, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Avery C.Maggio, Appellant. |
—[*1] John W. Muehl, District Attorney, Cooperstown, for respondent.
Stein, J. Appeal from a judgment of the Supreme Court (Coccoma, J.), rendered June 9, 2008in Otsego County, upon a verdict convicting defendant of the crimes of criminal sexual act in thefirst degree (three counts) and sexual abuse in the first degree (two counts).
In May 2007, defendant (born in 1989) was charged in an eight-count indictment withvarious sex crimes based upon allegations that he sexually abused the victim (born in 1993)while they rode the school bus home during 2005, 2006 and 2007. A jury found defendant guiltyof three counts of criminal sexual act in the first degree and two counts of sexual abuse in thefirst degree. Supreme Court sentenced defendant to an aggregate term of 15 years in prison.Defendant now appeals and we affirm.
We are unpersuaded by defendant's contention that the evidence was legally insufficient andthat the verdict was against the weight of the evidence with regard to the element of forciblecompulsion. Defendant does not dispute that he engaged in sexual conduct with the victim, butargues that the evidence failed to establish that he compelled the victim to perform oral sex orengage in sexual conduct with him, either by physical force or by a threat that placed the victim"in fear of immediate death or physical injury to himself . . . or another person"(Penal Law § 130.00 [8] [b]). The element of forcible compulsion must be viewed through"the state of mind produced in the victim by the defendant's conduct" (People vThompson, 72 NY2d 410, 416 [1988]), considering all "relevant factors includ[ing] the ageof the victim, the relative size and strength of the defendant and victim, and the nature of thedefendant's relationship to the victim" (People v Sehn, 295 AD2d 749, 750 [2002], lvdenied 98 NY2d 732 [2002]; see People v Scanlon, 52 AD3d 1035, 1038 [2008],lv denied 11 NY3d 741 [2008]; People v Val, 38 AD3d 928, 929 [2007], lvdenied 9 NY3d 852 [2007]; People v Newell, 290 AD2d 652, 653-654 [2002], lvdenied 98 NY2d 712 [2002]).
The record here establishes that defendant is a six-foot tall, 240-pound man, who is fouryears older than the victim. Defendant first engaged the victim in a sexual conversation when thevictim was just nine years old. When the victim was 12 years old, defendant "pushed into the[bus] seat and told [the victim] to pull down [his] pants." Upon the victim's refusal, defendantphysically grabbed the victim's testicles and threatened to harm him. The victim testified that, asa result, he acquiesced to defendant's demands that he pull down his pants and permit defendantto touch his penis. In addition, defendant grabbed the victim's hands and placed them ondefendant's penis. The victim further testified that defendant demanded and physically forced thevictim to touch defendant's penis at other times and that, on at least two occasions, pulled thevictim's head down and made the victim perform oral sex on him. On one occasion, defendantnot only grabbed the victim's testicles, but also grabbed his arm and pinched him. On anotheroccasion, defendant grabbed the victim's arm, leg and knee and caused him pain. According tothe victim, defendant threatened to kill him and his mother if he did not comply with defendant'sdemands, and the victim believed those threats.
The focus with regard to the threat of harm is "not what the defendant would or could havedone, 'but rather what the victim, observing [the defendant's] conduct, feared [he] would or mightdo if [the victim] did not comply with [his] demands' " (People v Thompson, 72 NY2d at415-416, quoting People v Coleman, 42 NY2d 500, 505 [1977]). Thus, whether or notdefendant could have actually implemented his threats immediately is not determinative (seePeople v Thompson, 72 NY2d at 416-417). Nor is the victim's failure to scream or cryout—despite the proximity of other children and/or the bus driver—dispositive(see People v Scanlon, 52 AD3d at 1038; People v Smith, 302 AD2d 677, 679[2003], lv denied 100 NY2d 543 [2003]).
Here, the jury apparently discredited defendant's theory that the victim consented to the actsand credited the victim's testimony, including his allegations relating to forcible compulsion. Wedo not find the victim's testimony to be unworthy of belief as a matter of law (see People vSmith, 272 AD2d 713, 716 [2000], lv denied 95 NY2d 871 [2000]), particularly inview of the testimony of clinical psychologist Robert Hamill, which explains the victim'sincomplete rendition and/or inconsistent versions of the events and delay in reporting defendant'sacts. Viewing the evidence in the light most favorable to the People (see People v Cabey,85 NY2d 417, 420 [1995]; People v Roberts, 63 AD3d 1294, 1296 [2009]) and givingthem the benefit of every favorable inference (see People v Bleakley, 69 NY2d 490, 495[1987]; People v Scanlon, 52 AD3d at 1038), there is a valid line of reasoning supportingthe jury's finding of forcible compulsion with respect to each crime of which defendant wasconvicted (see Penal Law § 130.50 [1]; § 130.65 [1]). Furthermore, uponour examination of all the credible evidence in a neutral light, we are satisfied that, while adifferent verdict would not have been unreasonable, the verdict is supported by the weight of theevidence (see People v Bleakley, 69 NY2d at 495; People v Littebrant, 55 AD3d1151, 1155-1156 [2008], lv denied 12 NY3d 818 [2009]; People v Davis, 21AD3d 590, 591-592 [2005]).
Supreme Court's Molineux ruling allowing the People to admit into evidence proofof uncharged crimes—specifically, sex crimes and threats against the victim that werealleged to have occurred from 2002 until the first act charged in the indictment—was notan improvident [*2]exercise of discretion. Such evidence was"admissible to develop the necessary background and complete the victim's narrative"(People v Shofkom, 63 AD3d 1286, 1287 [2009], lv denied 13 NY3d 799[2009], appeal dismissed 13 NY3d 933 [2010]) in demonstrating the element of forciblecompulsion and to explain why the victim did not report the abuse (see People v Greene,306 AD2d 639, 642 [2003], lv denied 100 NY2d 594 [2003]; People v Peraza,288 AD2d 689, 691 [2001], lv denied 97 NY2d 707 [2002]). Notably, the courtrepeatedly gave the jury thorough limiting instructions in order to insulate defendant from anyprejudicial effect that such evidence may have had.
Nor did Supreme Court err in allowing an expert witness to testify regarding child sexualabuse accommodation syndrome. Such testimony was properly offered to provide the jury withan explanation as to why children delay in reporting sexual abuse (see People v Carroll,95 NY2d 375, 387 [2000]; People v Weber, 25 AD3d 919, 923 [2006], lv denied6 NY3d 839 [2006]). The expert did not opine as to whether this victim was abused, but properlyconfined his testimony to educating the jury on the syndrome, and defendant's counselcross-examined Hamill regarding the applicability of the syndrome, to the circumstances here(see People v Weber, 25 AD3d at 923).
We find no merit to defendant's contention that his sentence was harsh and excessive (seePeople v Sidbury, 24 AD3d 880, 881-882 [2005], lv denied 6 NY3d 818 [2006]) andwe discern no abuse of discretion or extraordinary circumstances that would warrant a reductionof the sentence in the interest of justice (see People v Miles, 61 AD3d 1118, 1120[2009], lv denied 12 NY3d 918 [2009]; People v Kennard, 60 AD3d 1096, 1097[2009], lv denied 12 NY3d 926 [2009]).
Peters, J.P., Spain, Lahtinen and Garry, JJ., concur. Ordered that the judgment is affirmed.