| People v Clarkson |
| 2010 NY Slip Op 08244 [78 AD3d 1573] |
| November 12, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Douglas Clarkson,Appellant. |
—[*1] Jon E. Budelmann, District Attorney, Auburn (Christopher T. Valdina of counsel), forrespondent.
Appeal from a judgment of the Cayuga County Court (Mark H. Fandrich, J.), rendered November18, 2008. The judgment convicted defendant, upon a jury verdict, of endangering the welfare of a child(two counts) and course of sexual conduct against a child in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, after a jury trial, of course ofsexual conduct against a child in the second degree (Penal Law § 130.80 [1] [a]) and twocounts of endangering the welfare of a child (§ 260.10 [1]). Defendant failed to preserve for ourreview his contention that the verdict is repugnant insofar as the jury found him guilty of course of sexualconduct against a child and acquitted him of 23 counts of sexual abuse in the first degree under PenalLaw § 130.65 (3) with respect to the same victim (see People v Alfaro, 66 NY2d 985,987 [1985]; People v Haberer, 24AD3d 1283, 1284 [2005], lv denied 7 NY3d 756, 848 [2006]). In any event, thatcontention is without merit inasmuch as each of the 23 counts of sexual abuse alleged that the abuseoccurred within a specified one-week period, while the single count of course of sexual conduct againsta child alleged only that two or more acts of sexual conduct were committed over a period of time "notless than three months in duration, namely between October 6, 2006 and January 5, 2007." We furtherreject defendant's contention that County Court abused its discretion in refusing to admit evidence thatan individual who was dating the victim's mother during the relevant time period had been convicted ofa sex crime in 2005. " 'While evidence tending to show that another party might have committed thecrime would be admissible, before such testimony can be received there must be such proof ofconnection with it, such a train of facts or circumstances as tend clearly to point out someone besidesthe [defendant] as the guilty party' " (People vSchulz, 4 NY3d 521, 529 [2005], quoting Greenfield v People, 85 NY 75, 89[1881]). " 'Remote acts, disconnected and outside of the crime itself, cannot be separately proved' toshow that someone other than the defendant committed the crime" (id.). We conclude underthe circumstances of this case that proof of the conviction of the individual dating the victim's motherwould have caused "undue delay, prejudice and confusion" (id.).
The court also properly refused to allow defendant to "introduce extrinsic evidence on a [*2]collateral matter solely to impeach [the] credibility" of the victim(People v Alvino, 71 NY2d 233, 247 [1987]; see People v Simmons, 21 AD3d 1275 [2005], lv denied 6NY3d 781 [2006]), i.e., unfounded reports made by the victim to Child Protective Services(see Social Services Law § 412 [6]). Contrary to defendant's contention, the People didnot fail to turn over Brady material in a timely manner. Even assuming, arguendo, that thematerial at issue was exculpatory, we note that defendant received it "as part of the Rosariomaterial provided to him and was given a meaningful opportunity to use the exculpatory evidence"(People v Middlebrooks, 300 AD2d 1142, 1143-1144 [2002], lv denied 99 NY2d630 [2003]). Defendant failed to preserve for our review his contention that the evidence is legallyinsufficient to support the conviction (see People v Hines, 97 NY2d 56, 61 [2001], reargdenied 97 NY2d 678 [2001]). In any event, we conclude that the evidence, viewed in the lightmost favorable to the People (see People v Contes, 60 NY2d 620, 621 [1983]), is legallysufficient to support the conviction. Furthermore, viewing the evidence in light of the crimes as chargedto the jury (see People v Danielson, 9NY3d 342, 349 [2007]), we reject defendant's contention that the verdict is against the weight ofthe evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Finally, weconclude that defendant was not denied effective assistance of counsel (see generally People vBaldi, 54 NY2d 137, 147 [1981]), and that the sentence is not unduly harsh or severe.Present—Smith, J.P., Peradotto, Carni, Sconiers and Gorski, JJ.