| People v Kidwell |
| 2011 NY Slip Op 07307 [88 AD3d 1060] |
| October 20, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v ChristopherM. Kidwell, Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Joann Rose Parry of counsel), forrespondent.
Peters, J.P. Appeal from a judgment of the County Court of Broome County (Smith, J.),rendered January 4, 2008, upon a verdict convicting defendant of the crimes of sexual abuse inthe first degree and endangering the welfare of a child.
In November 2006, the then six-year-old victim reported to her mother that defendant hadtouched her "private parts" while she was staying at the home of the mother's friend. The mothercontacted the police and, following an investigation, defendant was arrested and charged withsexual abuse in the first degree and endangering the welfare of a child. Following a jury trial,defendant was convicted of both charges and sentenced as a second felony offender to anaggregate term of seven years in prison, to be followed by five years of postrelease supervision.He now appeals.
Defendant asserts that County Court erred in failing to dismiss the indictment on the groundthat the grand jury heard allegedly prejudicial testimony concerning a prior uncharged crime.During the victim's videotaped testimony before the grand jury, she stated that she slept over atthe home of her mother's friend after having Thanksgiving dinner there, and that her brother anddefendant had also stayed there that night. When questioned as to whether her sister also sleptover, the victim responded, "She didn't. It happened to [her] when she was up there, [*2]too." The victim's testimony in this regard neither indicated whathad happened to her sister, nor who else had been involved in the incident. While defendantargues that the jury could infer from this statement that the victim's sister was subjected to asexual assault by defendant, we find that any error in the presentation of this testimony did notimpair the integrity of the grand jury proceeding such that dismissal of the indictment waswarranted (see CPL 210.35 [5]).
"Dismissal is a drastic, exceptional remedy and 'should thus be limited to those instanceswhere prosecutorial wrongdoing, fraudulent conduct or errors potentially prejudice the ultimatedecision reached by the [g]rand [j]ury' " (People v Moffitt, 20 AD3d 687, 688 [2005], lv denied 5NY3d 854 [2005], quoting People v Huston, 88 NY2d 400, 409 [1996]; see People v Tatro, 53 AD3d 781,783 [2008], lv denied 11 NY3d 835 [2008]). "[N]ot every improper comment, elicitationof inadmissible testimony, impermissible question or mere mistake renders an indictmentdefective. Typically, the submission of some inadmissible evidence will be deemed fatal onlywhen the remaining evidence is insufficient to sustain the indictment" (People v Huston,88 NY2d at 409; accord People vButcher, 11 AD3d 956, 958 [2004], lv denied 3 NY3d 755 [2004]; see People v Mujahid, 45 AD3d1184, 1185 [2007], lv denied 10 NY3d 814 [2008]). Given the ambiguity of thevictim's statement and considering that the evidence before the grand jury was sufficient tosupport the charges of the indictment, dismissal was not required even if the statement at issuecould be deemed evidence of a prior uncharged crime (see People v Mujahid, 45 AD3d at1186; People v Crandall, 306 AD2d 748, 749 [2003], lv denied 100 NY2d 619[2003]; see also People v Mitchell,55 AD3d 1048, 1050 [2008], lv denied 12 NY3d 856 [2009]; cf. People v Vargas, 72 AD3d1114, 1119 [2010], lv denied 15 NY3d 758 [2010]).
Defendant next contends that the verdict was against the weight of the evidence because theunsworn testimony of the infant victim was not sufficiently corroborated. We disagree. A child'sunsworn testimony may be sufficiently corroborated "by evidence tending to establish the crimeand connecting [the] defendant with its commission" (People v Groff, 71 NY2d 101, 104[1987]; see People v Petrie, 3 AD3d665, 667 [2004]). Here, the victim testified that defendant touched her vaginal and anal areasover her underwear while she was sleeping on the floor. Such testimony was consistent with herprompt complaint to her mother. Defendant's own testimony, as well as that of the mother'sfriend, placed him in the living room with the victim at the precise time the victim claimed theabuse occurred, and the mother's friend explained that she awoke to find defendant lying on theliving room floor next to the victim with his arm around her. Moreover, testimony was presentedthat the victim's behavior noticeably changed immediately after the incident, and severalwitnesses testified to having observed bruising on the victim's thighs within a day or twofollowing the alleged abuse. This evidence sufficiently corroborated the victim's unsworntestimony regarding the sexual abuse (see People v Byron, 85 AD3d 1323, 1324-1325 [2011]; Peoplev Petrie, 3 AD3d at 668; People v Zuke, 304 AD2d 910, 911 [2003], lvdenied 100 NY2d 601 [2003]; People v Lowe, 289 AD2d 705, 708 [2001];People v Cordero, 257 AD2d 372, 376 [1999], lv denied 93 NY2d 968 [1999]).Furthermore, although a different verdict would not have been unreasonable, upon viewing theevidence in a neutral light and according deference to the jury's credibility determinations, wefind the convictions to be supported by the weight of the evidence (see People v Byron,85 AD3d at 1325-1326; People vReynolds, 81 AD3d 1166, 1167 [2011], lv denied 16 NY3d 898 [2011]).
Nor are we persuaded by defendant's assertion that his sentence is harsh and excessive. Whilethe seven-year sentence imposed was greater than that offered to defendant during pleanegotiations, there is no evidence that he was punished for exercising his right to proceed to trial(see People v Molina, 73 AD3d1292, 1293 [2010], lv denied 15 NY3d 807 [2010]; People v [*3]Massey, 45 AD3d 1044, 1048 [2007], lv denied 9NY3d 1036 [2008]; People vChappelle, 14 AD3d 728, 729 [2005], lv denied 5 NY3d 786 [2005]; Peoplev Saunders, 309 AD2d 1063, 1065 [2003]). Rather, the sentence was in response todefendant's lengthy criminal record spanning over 10 years, his history of alcoholabuse—which played a role in the instant offense—and the abhorrent nature of hissexual exploitation of this young victim. Finding neither the existence of any extraordinarycircumstances nor an abuse of discretion in the imposition of the sentence (see People v Sabin, 73 AD3d1390, 1391 [2010], lv denied 15 NY3d 809 [2010]; People v Chilson, 285AD2d 733, 735-736 [2001], lvs denied 97 NY2d 640 [2001], 97 NY2d 752 [2002];People v Miller, 226 AD2d 833, 837 [1996], lv denied 88 NY2d 939 [1996]), wedecline to disturb it.
Spain, Stein, McCarthy and Garry, JJ., concur. Ordered that the judgment is affirmed.