| People v Artis |
| 2011 NY Slip Op 09044 [90 AD3d 1240] |
| December 15, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Clarence L.Artis, Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Joann Rose Perry of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the County Court of Broome County (Smith, J.),rendered February 8, 2010, upon a verdict convicting defendant of the crime of criminal sexualact in the first degree.
A jury found defendant guilty of criminal sexual act in the first degree for having hisseven-year-old daughter perform oral sex on him. Defendant then filed a CPL 330.30 motionalleging, among other things, juror misconduct. County Court denied that motion without ahearing and sentenced defendant to 20 years in prison, followed by 10 years of postreleasesupervision. Defendant appeals.
The conviction was supported by legally sufficient evidence and was not against the weightof the evidence. The victim, who was nine years old at the time of trial, testified under oath thaton one occasion when she was seven years old defendant instructed her to suck his penis, she didso, and defendant told her not to tell her mother because it "would break the happy family." Thistestimony was legally sufficient to establish the crime of criminal sexual act in the first degree(see Penal Law § 130.50 [3]). Contrary to defendant's assertion, her sworntestimony did not need to be corroborated (see CPL 60.20 [2], [3]). The victim's motherprovided information that supported the victim's testimony, while defendant testified that nosexual activity ever occurred and that the mother manipulated the child to fabricate allegations ofabuse [*2]to get revenge on him for breaking off theirengagement. The People also presented a letter that defendant wrote to his daughter from jailpromising to send her money and take her to Disneyland, and stating that he still loved hermother and wanted to marry her. The conflicting testimony "presented a quintessential credibilityclash that typically occurs in cases of this nature" and we find no reason to disturb the jury'sresolution of credibility in favor of the victim (People v Cruz, 41 AD3d 893, 895 [2007], lv denied 10NY3d 933 [2008]). Considering the evidence from a neutral perspective, and in light of the jury'scredibility findings, the verdict was not against the weight of the evidence.
Defendant was not deprived of his right to a speedy trial. The People announced readinesswithin the statutory time frame (see CPL 30.30 [1]). Defendant contends that his rightswere violated because the People did not turn over transcripts from his related Family Ct Actarticle 10 proceeding, requiring County Court to grant a mistrial in his first trial. Because theFamily Court transcripts were not in the People's possession, the prosecution was not required toturn them over and the failure to do so did not constitute a Brady violation. AlthoughCounty Court granted defendant a mistrial so that his counsel could obtain the transcripts for useat his criminal trial, that mistrial was not attributable to the People. Nothing in the recordindicates a lack of readiness by the People after they first announced readiness and nopostreadiness time was attributable to the People. Neither defendant's statutory nor constitutionalright to a speedy trial was violated (seePeople v Ramos, 48 AD3d 984, 986 [2008], lv denied 10 NY3d 938 [2008]).
Defendant received the effective assistance of counsel. Although defendant complains thatcounsel did not call certain witnesses at trial, defendant has not shown that most of theirtestimony would have been admissible. Counsel did attempt to call a caseworker and introduce avideotape of an interview with the victim to impeach her testimony, but County Court correctlydenied that request inasmuch as the victim had already admitted the inconsistency of her priorstatements (see People v Berry, 78AD3d 1226, 1228 [2010], lv denied 16 NY3d 828 [2011]). Counsel madeappropriate motions, engaged in meaningful cross-examination of the People's witnesses andpresented a consistent defense that the mother manipulated the child into fabricating allegationsof sexual abuse. The jury could not reach a verdict on a second count submitted to it, resulting indismissal of that count. Considering the totality of the representation, counsel provided defendantwith effective assistance (see People vElwood, 80 AD3d 988, 990 [2011], lv denied 16 NY3d 858 [2011]).
County Court did not err in denying defendant's CPL 330.30 motion without a hearing. Acourt may set aside a verdict if "during the trial there occurred, out of the presence of the court,improper conduct by a juror, . . . which may have affected a substantial right of thedefendant and which was not known" prior to the verdict being rendered (CPL 330.30 [2]).However, "not every misstep by a juror rises to the inherently prejudicial level at which reversalis required" (People v Brown, 48 NY2d 388, 394 [1979]; see People v Douglas, 57 AD3d1105, 1106 [2008], lv denied 12 NY3d 783 [2009]). Defendant submitted theaffidavit of a juror who averred that another juror stated during deliberations that her husbandwas on the grand jury that voted to indict defendant, and that the indictment was voted on prior todefendant writing the letter to his daughter. The implication was that defendant was aware of theindictment when he wrote the letter, and thus was trying to influence her testimony. The averringjuror did not indicate that she was swayed to vote guilty based upon this information, stating onlythat after the statement was made, she felt that defendant "was treated unfairly." Despite claimingin her affidavit that she believed defendant was not guilty, she did not explain why she had votedguilty and announced [*3]that verdict when the jury was polled.The People presented affidavits from the other 11 jurors. The accused juror averred that shementioned her husband having previously served on a grand jury, but that she did not say he wason the grand jury that voted to indict defendant. Court records show that her husband was not onthat grand jury. Several jurors did not recall having heard anything about another juror's husbandbeing on a grand jury. Others heard some comment on the topic, but all averred that the statementdid not influence their decision to convict defendant (see People v Gonzales, 228 AD2d722, 723 [1996], lv denied 88 NY2d 1021 [1996]). Some even reminded their fellowjurors of the court's instruction that they were not to consider anything that was not evidence.Although the affidavits are conflicting and may raise a question as to exactly what the one jurorsaid about her husband's grand jury service, a hearing was not required because the motionpapers did not sufficiently assert that juror misconduct—if any occurred—wasprejudicial to defendant so as to affect a substantial right, as no juror indicated that thestatement—even if made—impacted his or her guilty vote (compare People vMaragh, 94 NY2d 569, 575 [2000]).
Defendant's remaining contentions have been reviewed and found unavailing.
Rose, J.P., Lahtinen, Kavanagh and Garry, JJ., concur. Ordered that the judgment is affirmed.