| People v Wildrick |
| 2011 NY Slip Op 02594 [83 AD3d 1455] |
| April 1, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Richard M.Wildrick, Appellant. |
—[*1] R. Michael Tantillo, District Attorney, Canandaigua (Jeffrey L. Taylor of counsel), forrespondent.
Appeal from a judgment of the Ontario County Court (Craig J. Doran, J.), rendered July 21,2009. The judgment convicted defendant, upon a jury verdict, of sexual abuse in the first degree,sexual abuse in the second degree and endangering the welfare of a child (two counts).
It is hereby ordered that the judgment so appealed from is reversed as a matter of discretionin the interest of justice and on the law, counts five and eight of the indictment are dismissed, anda new trial is granted on the remaining counts of the indictment.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofsexual abuse in the first degree (Penal Law § 130.65 [3]), sexual abuse in the seconddegree (§ 130.60 [2]), and two counts of endangering the welfare of a child (§260.10 [1]). We agree with defendant that the two counts of endangering the welfare of a child ofwhich he was convicted are time-barred inasmuch as the acts charged therein occurred more thantwo years prior to the filing of the indictment (see Penal Law § 260.10; CPL 30.10[2] [c]; People v Heil, 70 AD3d1490 [2010]). Although defendant failed to preserve that issue for our review, wenevertheless exercise our power to review it as a matter of discretion in the interest of justice(see CPL 470.15 [6] [a]). We therefore dismiss the fifth and eighth counts of theindictment (see People v Wise, 49AD3d 1198, 1200 [2008], lv denied 10 NY3d 940 [2008], reconsiderationdenied 10 NY3d 966 [2008]).
Contrary to the further contention of defendant, the conviction of sexual abuse in the first andsecond degrees is supported by legally sufficient evidence (see generally People vBleakley, 69 NY2d 490, 495 [1987]). In addition, viewing the evidence in light of theelements of those crimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we concludethat the verdict convicting him of those crimes is not against the weight of the evidence (seegenerally Bleakley, 69 NY2d at 495).
We further agree with defendant, however, that County Court erred in denying his renewedapplication for subpoenas duces tecum with respect to the victims' school records. Defendantrenewed his pretrial application for the subpoenas duces tecum after the People elicited testimonyat trial from the mother of the victims to the effect that the victims' behavior had changed afterthe crimes took place. Specifically, the mother testified that the younger victim's behavior atschool was "[u]p and [*2]down, all over the place" until hereported the sexual abuse two years later. According to the mother, after the younger victimreported the sexual abuse, it was as though a "light switch[ed]. Everything got better. He likedschool. Everything changed." The mother further testified that she communicated with thevictims' teachers and school counselors "[e]very single day" during the two-year period at issue.Based on the mother's testimony concerning the victims' behavior at school, we conclude that thecourt erred in failing to conduct an in camera review of the victims' school records to determinewhether disclosure of at least a portion of those records was appropriate.
The purpose of a subpoena duces tecum is to "compel the production of specific documentsthat are relevant and material to facts at issue in a pending judicial proceeding. The relevant andmaterial facts in a criminal trial are those bearing upon 'the unreliability of either the criminalcharge or of a witness upon whose testimony it depends' " (People v Kozlowski, 11 NY3d 223, 242 [2008], rearg denied11 NY3d 904 [2009], cert denied 556 US —, 129 S Ct 2775 [2009], quotingPeople v Gissendanner, 48 NY2d 543, 550 [1979]). A defendant is not, however,required to show that the records sought are " 'actually' relevant and exculpatory" (id.,quoting Gissendanner, 48 NY2d at 550). Rather, a defendant need only "proffer a goodfaith factual predicate sufficient for a court to draw an inference that specifically identifiedmaterials are reasonably likely to contain information that has the potential to be both relevantand exculpatory" (id. at 241; see Gissendanner, 48 NY2d at 550). Here, theschool records had the potential not only to contradict and therefore to impeach the mother'stestimony, but they also had the potential to reveal information "relevant and material to thedetermination of guilt or innocence" (Gissendanner, 48 NY2d at 548). Indeed, if themother's testimony concerning the alleged change in behavior was not borne out by the schoolrecords, the records would undermine her testimony as well as the children's accusations ofsexual abuse, thus tending to support the theory of the defense that the accusations werefabricated. We thus conclude that defendant "sufficiently established that the children's recordswere material to his defense and that the court erred in withholding the records from him"(People v Thurston, 209 AD2d 976, 977 [1994], lv denied 85 NY2d 915 [1995]).That error cannot be deemed harmless inasmuch as the proof of guilt, which consists largely ofthe victims' accusations, is not overwhelming, and it cannot be said that there is no significantprobability that the jury would have acquitted defendant if not for the error (see generally People v Grant, 7 NY3d421, 424 [2006]; People v Crimmins, 36 NY2d 230, 241-242 [1975]; cf. Peoplev Morris, 153 AD2d 984 [1989], lv denied 75 NY2d 922 [1990]). We thereforereverse the judgment of conviction with respect to the remaining counts of the indictment ofwhich defendant was convicted, i.e., sexual abuse in the first and second degrees, and we grant anew trial on those counts (see Thurston, 209 AD2d at 976-977).
Although we are granting a new trial on other grounds and thus need not address defendant'scontention that reversal is required based on prosecutorial misconduct on summation, wenevertheless express our disapproval of several of the prosecutor's comments on summation,which exceeded the bounds of proper advocacy. For example, the prosecutor argued that, "in the[d]efendant's mind, he hadn't hurt the [victims]. He has given them a gift. He has given them thegift of his sexual encounter with them. He doesn't think that he has hurt these kids by touchingthem in their genital area when they are underage and forcing his hands upon them or making[one of the victims] touch him as well. He doesn't think he has hurt these kids because he hasgiven them a gift." There is no basis in the record for such comments by the prosecutor, whothereby improperly inflamed the jury with those unsubstantiated comments (see generallyPeople v Ashwal, 39 NY2d 105, 110 [1976]; People v Collins, 12 AD3d 33, 39-40 [2004]). Similarly, theprosecutor stated on summation that the older victim withheld certain details about the sexualabuse because the victim was "worried that the people are going to think that he might be gay,"and in later repeating that statement, the prosecutor commented that "[i]t was awkward andembarrassing for [the older victim] to think, as mentioned, that people would think that [he] wasgay because the [d]efendant made [him] touch him." Again, there is no basis in the [*3]record to support those comments (see Ashwal, 39 NY2d at109-110; Collins, 12 AD3d at 39-40; People v Clark, 195 AD2d 988, 990[1993]). We thus take this opportunity to admonish the People that "summation is not anunbridled debate in which the restraints imposed at trial are cast aside so that counsel mayemploy all the rhetorical devices at his [or her] command. There are certain well-defined limits. . . . Above all [a prosecutor] should not seek to lead the jury away from the issuesby drawing irrelevant and inflammatory conclusions which have a decided tendency to prejudicethe jury against the defendant" (Ashwal, 39 NY2d at 109-110).
In light of our determination, we do not address defendant's remaining contentions.
All concur except Smith, J.P., who dissents in part and votes to modify in accordance withthe following memorandum.
Smith, J.P. (dissenting in part). I respectfully dissent in part. I agree with the majority thatcounts five and eight, charging defendant with endangering the welfare of a child (Penal Law§ 260.10 [1]), are time-barred and therefore must be dismissed. I respectfully disagree withthe majority's further conclusion, however, that County Court erred in denying defendant'srenewed application for subpoenas duces tecum with respect to the victims' school records, and Itherefore vote to modify by affirming the remainder of the judgment.
Prior to trial, defendant sought the issuance of subpoenas duces tecum to enable him toobtain the victims' school records. The court denied that pretrial application on the ground thatdefendant failed to make the requisite factual showing that it was reasonably likely that therecords would contain information bearing upon the victims' credibility. When defendantrenewed that application during trial, after the victims' mother testified, I conclude that the courtproperly denied his renewed application on the same ground.
"The proper purpose of a subpoena duces tecum, of course, is to compel the production ofspecific documents that are relevant and material to facts at issue in a pending judicialproceeding. The relevant and material facts in a criminal trial are those bearing upon 'theunreliability of either the criminal charge or of a witness upon whose testimony it depends' " (People v Kozlowski, 11 NY3d223, 242 [2008], rearg denied 11 NY3d 904 [2009], cert denied 556 US—, 129 S Ct 2775 [2009]). Here, the mother of the victims testified that the behavior ofthe victims changed after they were sexually abused, and that those changes encompassed certainbehavior at school. Defendant sought access to the victims' school records, indicating that therecords might contain information establishing that the testimony of the victims and their motherwas not credible. In support of his application, however, defendant proffered absolutely nofactual information establishing that the victims' school records contained any informationregarding the purported changes in the victims' behavior. Thus, defense counsel "made nopretense but that the records' contents would not directly bear on the hard issue of guilt orinnocence; he cited no possible line of inquiry in which they might be employed beyond that ofgeneral credibility impeachment. Even on that score, no basis was presented, in the form ofinformation from any extraneous source or otherwise, to suggest that [the school records of thevictims contained evidence of an] act on which one could premise an inference that impeachablematerial tending to affect [the] credibility [of the victims and their mother] was to be found intheir files. In short, nothing better than conjecture having been presented to the court, it actedwell within its range of discretion in rejecting the application" (People v Gissendanner,48 NY2d 543, 550 [1979]). Indeed, "the simple answer to this contention is that there emergednot the slightest inkling that the [victims' school] records contained any exculpatory material"(id. at 551). Present—Smith, J.P., Fahey, Peradotto, Lindley and Martoche, JJ.