| People v Hughes |
| 2010 NY Slip Op 02681 [72 AD3d 1121] |
| April 1, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York,Respondent, v Glennan Hughes, Appellant. |
—[*1] Kathleen B. Hogan, District Attorney, Lake George (Kevin P. Donlon of counsel), forrespondent.
Lahtinen, J. Appeal from a judgment of the County Court of Warren County (Hall, Jr., J.),rendered January 3, 2007, upon a verdict convicting defendant of the crimes of sexual abuse inthe first degree (seven counts), endangering the welfare of a child (five counts) and forcibletouching.
A foster child residing with defendant and his wife was allegedly subjected to sexual contactby defendant on March 31, 2002, including placing his fingers in her vagina and anus on twoseparate occasions that evening. The child (hereinafter the younger victim), who was five yearsold at the time, did not tell anyone until after she had been adopted and was living in anotherstate in 2005. During the ensuing investigation of the incident, another girl, who was a relative ofdefendant and had spent time at defendant's home in the summers of 1996 and 1997, reportedthat, during such summers, defendant had placed his fingers in her vagina and rubbed his erectedpenis against her buttocks. This child (hereinafter the older victim) was 10 and 11 years old atthe time of the alleged acts. Defendant was charged in a 13-count indictment with seven countsof sexual abuse in the first degree, five counts of endangering the welfare of a child and onecount of forcible touching. He was convicted of all counts following a jury trial and sentenced toan aggregate prison term of 18 years with three years of postrelease supervision. Defendantappeals.
A series of errors, the cumulative effect of which cannot be characterized as harmless, [*2]requires reversal. First, we note that five of the counts againstdefendant were time-barred. Although defendant failed to preserve the issue, we exercise ourinterest of justice jurisdiction regarding this issue.[FN1]Defendant was convicted of two counts of endangering the welfare of a child regarding theyounger victim (counts 3 and 8) and three counts of such crime as to the older victim (counts 10,12 and 13). Endangering the welfare of a child is a class A misdemeanor (see Penal Law§ 260.10 [1]) and the statute of limitations as to such crime is two years (see CPL30.10 [2] [c]; People v Scanlon, 52AD3d 1035, 1037 [2008], lv denied 11 NY3d 741 [2008]; People v Rogner,265 AD2d 688, 688 [1999]). Unlike sexual offenses under Penal Law article 130, the limitationsperiod pertaining to this misdemeanor is not tolled until the victim's 18th birthday (seeCPL 30.10 [3] [f]). Here, September 2005 is the earliest date asserted by the People as a date ofcommencement. This was over eight years after the last alleged act involving the older victimand about 3½ years after the last alleged act involving the younger victim. The convictionof the counts of endangering the welfare of a child (counts 3, 8, 10, 12 and 13) must thus bereversed and those counts dismissed.
Review of the record further reveals that the evidence at trial did not support the convictionof sexual abuse in the first degree under count 11.[FN2]That count alleged that defendant, in the summer of 1997, subjected the older victim to sexualconduct when she was less than 11 years old (see Penal Law § 130.65 [3]). Theuncontradicted proof at trial, including the older victim's own testimony, established that she wasborn in April 1986 and, by the summer of 1997, she was, in fact, 11 years old. While thetestimony regarding defendant's touching of her in the summer of 1997, together with her age,would support a conviction of the lesser included crime of sexual abuse in the second degree(see Penal Law § 130.60 [2]), the conviction of sexual abuse in the first degreewas improper since she was not less than 11 years old in the summer of 1997. The conviction onthis count must be reversed, with leave to re-present an appropriate charge to a new grand jury.
During trial and over defendant's objection, the People attempted to impeach the testimonyof defendant's wife by using a letter she had written to her relatives, who were also family of theolder victim. While we are unpersuaded that County Court abused its discretion in permittingsuch questioning (see People v Duncan, 46 NY2d 74, 80 [1978]), a cautionaryinstruction advising the jury that this proof could be considered only for impeachment purposeswas not given. Moreover, during summation, the prosecutor quoted the letter while urging thejury to consider it as direct evidence of defendant's guilt. We recently held on similar facts thatsuch conduct required reversal (seePeople v Montgomery, 22 AD3d 960, 962-963 [2005]; see also People vPatterson, 203 AD2d 597, 598 [1994]). The same result must follow here.[*3]
We further note that there is merit to defendant'sargument that the People failed to timely disclose the fact that the older victim had a pendingcriminal charge against her. The People must disclose, after jury selection and before theiropening statement, various information including, as relevant here, "[t]he existence of anypending criminal action against a witness the [P]eople intend to call at trial" (CPL 240.45 [1][c]). This disclosure requirement affords a defendant the opportunity to explore whether anypromises had been offered for the witness's cooperation (see Preiser, PracticeCommentaries, McKinney's Cons Laws of NY, Book 11A, CPL 240.45, at 9-10). The People didnot provide the arrest information until the older victim testified. This violated the statute. Whilethis error alone would not necessarily mandate reversal in this case since County Court permitteddefendant to inquire on cross-examination of the older victim whether she had received anybenefit from her testimony, it nevertheless reflects another error. In light of the errors set forth,we are unpersuaded that defendant received a fair trial. The remaining arguments are academic.
Peters, J.P., Spain, Stein and Garry, JJ., concur. Ordered that the judgment is reversed, on thelaw and as a matter of discretion in the interest of justice, counts 3, 8, 10, 12 and 13 dismissedwith prejudice, count 11 dismissed with leave to re-present any appropriate related charge toanother grand jury, and matter remitted to the County Court of Warren County for a new trial onthe remaining counts.
Footnote 1: Trial counsel failed to raise thestatute of limitations issue and appellate counsel asserted it as to the three misdemeanor countsinvolving the older victim. We note that, in some circumstances, such failures have ineffectiveassistance of counsel implications (seePeople v Turner, 5 NY3d 476 [2005]).
Footnote 2: Again, although this issue wasnot raised by trial or appellate counsel (see People v Turner, 5 NY3d at 479-485), weexercise our interest of justice jurisdiction and take corrective action with respect thereto.