| People v Rhodes |
| 2012 NY Slip Op 00423 [91 AD3d 1185] |
| Jnury 26, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v LawrenceRhodes, Appellant. |
—[*1] James Sacket, District Attorney, Schoharie (Michael L. Breen of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the County Court of Schoharie County (Bartlett III,J.), rendered February 11, 2009, upon a verdict convicting defendant of the crimes of criminalsexual act in the first degree (six counts), criminal sexual act in the second degree (13 counts),criminal sale of marihuana in the second degree (12 counts), endangering the welfare of a child(six counts) and sexual abuse in the third degree (two counts).
In 2008, defendant was charged in two separate indictments with, among other things,numerous sex crimes stemming from his inappropriate contact with his two daughters (born in1991 and 1992) between September 2006 and December 2007. Following a jury trial, defendantwas convicted of 39 of the 42 counts charged in the indictments and was sentenced to anaggregate prison term of 25 years followed by 20 years of postrelease supervision. This appeal bydefendant ensued.
We affirm. Initially, we discern no error with respect to County Court's Molineuxruling. At trial, the People sought to offer evidence of defendant's "grooming" of the victims,which entailed conduct committed by defendant prior to the incidents charged in the underlyingindictments. Defendant does not dispute that such evidence falls within at least one of therecognized Molineux exceptions (see People v Molineux, 168 NY 264, 293[1901])—namely, to establish motive or provide necessary background information(see People v Burnell, 89 AD3d [*2]1118, 1121[2011])—and, despite defendant's assertion to the contrary, County Court was not requiredto conduct a formal Ventimiglia hearing. Rather, "[a]ll that [was] required [was] that thePeople alert the court and defendant of the 'prior crime' evidence intended to be introduced ontheir case-in-chief and identify some issue, other than mere criminal propensity, to which theevidence is relevant" (People v Holmes, 260 AD2d 942, 943 [1999], lv denied 93NY2d 1020 [1999]; see People v Wemette, 285 AD2d 729, 731 [2001], lv denied97 NY2d 689 [2001]), which is precisely what the People did here. As to the issue of appropriatelimiting instructions, although County Court advised defendant—at the time it issued itsMolineux ruling—that it would grant these instructions upon defendant's request,the record reveals that defendant never made any such request.[FN1] In short, the record as a whole fails to support defendant's present claim that the limitedtestimony adduced on this point deprived him of a fair trial.
Nor do we find any merit to defendant's claimed Brady violation. Even assuming thatthe various documents contained in the victims' files maintained by the local Department ofSocial Services qualify as Brady material, defendant concedes that he consented toCounty Court's in camera review of the files, and the record reveals that defendant thereafteraccepted, without objection or further complaint, the two documents that the court deemed to bepotentially exculpatory. Having acquiesced to the procedure adopted by the trial court, defendantcannot now be heard to speculate that there were additional, unidentified yet purportedlyexculpatory materials that were not disclosed.
Similarly unavailing is defendant's assertion that there is legally insufficient evidence tosupport the verdict convicting him of 12 counts of criminal sale of marihuana in the seconddegree. In this regard, defendant—as so limited by his brief—argues that while thereis ample evidence that he and his oldest daughter (hereinafter victim A) jointly possessed themarihuana in question, there is insufficient evidence of any alleged sales to her. Insofar as isrelevant to this appeal, "[a] person is guilty of criminal sale of marihuana in the second degreewhen he knowingly and unlawfully sells one or more preparations, compounds, mixtures orsubstances containing marihuana . . . to a person less than [18] years of age" (PenalLaw § 221.50). "Sell," in turn, is broadly defined as "sell, exchange, give or dispose of toanother, or to offer or agree to do the same" (Penal Law § 220.00 [1]).
Here, there is ample evidence that defendant gave or otherwise provided victim A withmarihuana on multiple occasions throughout the course of summer 2007.[FN2] Specifically, defendant admitted that he either purchased the marihuana outright—or gavevictim A money to make such purchases—and thereafter shared the marihuana in questionwith victim A. Additionally, victim A testified to numerous instances where defendant wouldpass a joint or pipe to her and both of them would be high "all day long." In view of suchtestimony, defendant's legal sufficiency claim must fail (see People v Bleakley, 69 NY2d490, 495 [1987]; People v Lane, 47AD3d 1125, 1127 n 1 [2008], lv denied 10 NY3d 866 [2008]; see generally [*3]People v Leonidow, 256 AD2d 917, 918 [1998], lvdenied 93 NY2d 875 [1999]).
As for defendant's claim that the sentence imposed was harsh and excessive, given themanner in which defendant exploited his daughters, the multitude of sex crimes for which hestands convicted and victim A's testimony regarding defendant's repeated threats of physicalharm or other dire consequences should she dare to disclose the abuse, County Court's impositionof the maximum sentence possible for the six counts of criminal sexual act in the first degree wasnot only a provident exercise of the court's discretion but, in our view, was entirely justified.Defendant's remaining contentions, to the extent not specifically addressed, have been examinedand found to be lacking in merit.
Peters, J.P., Rose, McCarthy and Garry, JJ., concur. Ordered that the judgment is affirmed.
Footnote 1: County Court did, however, soinstruct the jury during the course of the final charge.
Footnote 2: Defendant purportedly wasconcerned that victim A might engage in such activity with her classmates and concluded that he"would rather have her smoke pot at the house [with him] than go doing it with friends atschool."