| People v Otway |
| 2010 NY Slip Op 02587 [71 AD3d 1052] |
| March 23, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Delbert Otway, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Phyllis Mintz ofcounsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Mullen, J.),rendered November 28, 2007, convicting him of course of sexual conduct against a child in thefirst degree (two counts) and endangering the welfare of a child, upon a jury verdict, andimposing sentence.
Ordered that the judgment is modified, on the facts, by vacating the defendant's conviction ofcourse of sexual conduct against a child in the first degree, in violation of Penal Law §130.75 (1) (a), as charged in count one of the indictment, vacating the sentence imposed thereon,and dismissing that count of the indictment; as so modified, the judgment is affirmed.
The defendant was convicted of endangering the welfare of a child and two counts of courseof sexual conduct against a child in the first degree. One count of course of sexual conductagainst a child alleged a violation of Penal Law § 130.75 (1) (a), which requires that thedefendant engage in a certain number and type of sexual acts with a child less than 11 years old,while the other count charging that offense alleged a violation of Penal Law § 130.75 (1)(b), which requires that the defendant, being 18 years old or more, engage in such acts with achild less than 13 years old. The defendant also was charged with, but acquitted of, 7 counts ofsodomy in the second degree, 25 counts of sexual misconduct, 21 counts of sexual abuse in thesecond degree, 9 counts of rape in the third degree, 27 counts of sexual abuse in the third degree,and an additional count of endangering the welfare of a child was dismissed prior to trial.
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish thedefendant's guilt beyond a reasonable doubt on all three counts of which he was convicted.Moreover, upon the exercise of our independent factual review power (see CPL 470.15[5]), we are satisfied that the verdict of guilt on the counts charging endangering the welfare of achild and course of sexual conduct against a child in violation of Penal Law § 130.75 (1)(b) was not against the weight of the evidence.
However, with respect to the count charging course of sexual conduct against a child inviolation of Penal Law § 130.75 (1) (a), we find that the verdict of guilt was against theweight of the evidence. " '[W]eight of the evidence review requires a court first to determinewhether an acquittal would [*2]not have been unreasonable. If so,the court must weigh conflicting testimony, review any rational inferences that may be drawnfrom the evidence and evaluate the strength of such conclusions. Based on the weight of thecredible evidence, the court then decides whether the [trier of fact] was justified in finding thedefendant guilty beyond a reasonable doubt' " (People v Madison, 61 AD3d 777, 778[2009], quoting People v Danielson, 9 NY3d 342, 348 [2007]).
Under the circumstances here, we find that an acquittal on the count charging a violation ofPenal Law § 130.75 (1) (a) would not have been unreasonable and, further, that the weightof the credible evidence was against the verdict of guilt on that count (see People vZephyrin, 52 AD3d 543 [2008]). While we accord great deference to the jury's opportunityto view the witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2NY3d 383, 410 [2004], cert denied 542 US 946 [2004]; People v Bleakley, 69NY2d 490 [1987]), here, the testimony of the prosecution's witnesses did not justify the jury'sfinding that the defendant was guilty under Penal Law § 130.75 (1) (a). The complainanttestified that the defendant began engaging in oral sex with her when she was "[p]robably [10] or11, something like that." That testimony did not justify the jury's finding that at least someportion of the alleged course of sexual conduct occurred when the complainant was less than 11years of age. Nor did the People establish that fact through any other testimony or any medical ordocumentary evidence.
Unlike People v Velez (212 AD2d 819 [1995]), here, the complainant's trialtestimony concerning the acts that allegedly occurred when she was less than 11 years old wasnot detailed, and the jury was not justified in finding that the alleged incidents took place atspecific times and dates prior to the complainant's 11th birthday. There was no corroboration byothers of those alleged acts, although most of the alleged sexual assaults occurred when othersleeping individuals, including siblings of the complainant or the complainant's mother, werepresent in the same room. However, with respect to the acts committed after the complainantturned 11 and before she turned 13, the People presented corroborative proof concerning thecomplainant's failing grades and inability to focus, but no such proof was offered with respect tothe acts allegedly committed before the complainant was 11 years old.
In conducting our weight of the evidence review, we consider the jury's acquittal on othercounts, and, under the circumstances of this case, find it supportive of a reversal of theconviction of course of sexual conduct against a child in the first degree under Penal Law§ 130.75 (1) (a) (see People v Rayam, 94 NY2d 557 [2000]; People vRoss, 62 AD3d 619 [2009]; People v Johnson, 250 AD2d 1026 [1998]). Here, thedefendant was charged with but acquitted of 7 counts of sodomy in the second degree, 25 countsof sexual misconduct, 21 counts of sexual abuse in the second degree, 9 counts of rape in thethird degree, 27 counts of sexual abuse in the third degree, with an additional count ofendangering the welfare of a child dismissed prior to trial, which calls into question thecredibility of the complainant. Since there was no medical evidence or proof of socialmaladjustment to support the allegation that sexual acts occurred before the complainant was 11years old, the conviction rested solely on the credibility of the complainant, and her testimonywas inconsistent and not definite as to specific acts or times of the alleged sexual assaults.
The defendant's double jeopardy claim is unpreserved for appellate review and, in any event,is without merit (see People v Biggs, 1 NY3d 225 [2003], cert denied 555 US—, 129 S Ct 1326 [2009]; People v Beauharnois, 64 AD3d 996 [2009], lvdenied 13 NY3d 834 [2009]).
In light of our determination, we need not reach the defendant's remaining contentions.Prudenti, P.J., Covello, Lott and Sgroi, JJ., concur.