| People v Hughes |
| 2012 NY Slip Op 01523 [93 AD3d 889] |
| March 1, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v GlennanHughes, Appellant. |
—[*1] Kathleen B. Hogan, District Attorney, Lake George (Emilee B. Davenport of counsel), forrespondent.
Garry, J. Appeal from a judgment of the County Court of Warren County (Hall Jr., J.),rendered July 29, 2010, upon a verdict convicting defendant of the crime of sexual abuse in thefirst degree.
In 2007, defendant was convicted of multiple crimes arising out of allegations that he hadsexually abused two young victims in the City of Glens Falls, Warren County. These convictionswere reversed (People v Hughes, 72AD3d 1121 [2010]). Defendant was subsequently retried by a jury upon a single charge ofsexual abuse in the first degree. He was convicted as charged and sentenced to a prison term ofseven years with five years of postrelease supervision. Defendant appeals.
We reject defendant's contention that he was denied a fair trial by County Court's evidentiaryrulings pertaining to testimony describing the reaction of the victim's relatives to her disclosureof the abuse. The victim, who was 10 years old at the time of defendant's alleged conduct,testified that she did not tell anyone about it until nine years later. She testified that she keptsilent in part because she feared that she would be ostracized by family members and, inparticular, by defendant's wife, with whom the victim shared a close relationship. Overdefendant's objection, County Court permitted the victim to testify that after she disclosed the[*2]abuse, defendant's wife did not speak to her for several yearsand that "everything was different with [the victim's] family." Defendant contends that thistestimony was irrelevant and so prejudicial that he was denied a fair trial.
" '[E]vidence is relevant if it has any tendency in reason to prove any material fact,'. . . but to be admissible its probative value must not be 'substantially outweighedby the potential for prejudice' " (Peoplev Arafet, 54 AD3d 517, 519 [2008], affd 13 NY3d 460 [2009], quotingPeople v Mateo, 2 NY3d 383, 424, 425 [2004], cert denied 542 US 946 [2004]).The victim's delay in disclosing the abuse was a significant issue at trial; defendant argued thather prolonged silence indicated that the abuse had not occurred, while the People presented aforensic psychologist who testified, among other things, about psychological explanations fordelayed disclosure of childhood sexual abuse (see generally People v Spicola, 16 NY3d 441 [2011], certdenied 565 US —, 132 S Ct 400 [2011]). The challenged testimony thus had probativevalue, in that it tended to indicate that the victim's initial silence resulted, at least in part, from anaccurate appraisal of her family's likely reaction rather than from the nonoccurrence of the abuse.Moreover, the record reveals that County Court carefully limited the victim's testimony regardingthe reaction to her disclosure, and precluded the victim's mother from testifying on this subject atall. Accordingly, we find that the court appropriately balanced the probative value of thistestimony in helping to explain the delayed disclosure against the risk of prejudice to defendant,and that no abuse of discretion occurred (compare People v Khan, 88 AD3d 1014, 1014-1015 [2011]; People v Terry, 85 AD3d 1485,1488 [2011], lv denied 17 NY3d 862 [2011]; People v Manning, 81 AD3d 1181, 1183 [2011]).
Defendant's further contention regarding the victim's testimony that her three aunts "ended upin the emergency room" after being told about the abuse is unpreserved. County Court sustaineddefendant's objection to this testimony; while defendant now argues that a mistrial should havebeen granted or curative instructions administered, no request was made for either of theseremedies (see People v Heide, 84 NY2d 943, 944 [1994]; People v Delosh, 2 AD3d 1047,1049-1050 [2003], lv denied 1 NY3d 626 [2004]). Further, County Court had previouslyinstructed the jury that if an objection was sustained to testimony that had already been given, thetestimony in question would be stricken, was "no longer evidence in the case" and was not to beconsidered. Although the court did not strike the victim's answer after sustaining this objection,this relief was not requested. We find that the instruction was sufficient to cure any prejudice thatmay have resulted from the challenged testimony (compare People v Wright, 5 AD3d 873, 875 [2004], lvdenied 3 NY3d 651 [2004]).
Finally, defendant contends that County Court improperly sentenced him to the maximumpotential term of imprisonment as retribution for the reversal of his prior convictions (seePenal Law §§ 60.13, 70.80 [4] [a] [iii]; § 130.65 [3]). Our review "reveals 'noreasonable likelihood of vindictiveness' " (People v Seavey, 9 AD3d 742, 743 [2004], lv denied 4NY3d 748 [2004], quoting People v Young, 94 NY2d 171, 179 [1999]; accord People v Coon, 45 AD3d897, 898 [2007], lv denied 10 NY3d 763 [2008]). Read in context, the court'sreference to defendant's prior trial during sentencing did not indicate a punitive motive but,instead, indicated an appropriate concern for defendant's persistent lack of remorse and failure toaccept responsibility for his actions. Given this lack of contrition, the nature of defendant's crime,and the vulnerability of his victim, we perceive no abuse of discretion or extraordinarycircumstances warranting a reduction of the sentence in the interest of justice (see People v Wallis, 24 AD3d1029, 1033 [2005], lv denied 6 NY3d 854 [2006]; People v Carpenter, 301AD2d 676 [2003], lv denied 99 NY2d 626 [2003]; People v Smith, 272 AD2d713, 716 [2000], lv denied 95 [*3]NY2d 871 [2000]).
Peters, J.P., Rose, Lahtinen and Kavanagh, JJ., concur. Ordered that the judgment isaffirmed.