| People v Williams |
| 2012 NY Slip Op 03339 [94 AD3d 1555] |
| April 27, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Stephen O.Williams, Jr., Appellant. |
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Appeal from a judgment of the Oneida County Court (Michael L. Dwyer, J.), renderedNovember 4, 2010. The judgment convicted defendant, upon a jury verdict, of sexual abuse inthe first degree and sexual abuse in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofsexual abuse in the first degree (Penal Law § 130.65 [2]) and sexual abuse in the thirddegree (§ 130.55). Defendant failed to preserve for our review his challenge to the legalsufficiency of the evidence inasmuch as he made only a general motion for a trial order ofdismissal (see People v Gray, 86 NY2d 10, 19 [1995]), and he failed to renew thatmotion after presenting evidence (see People v Hines, 97 NY2d 56, 61 [2001], reargdenied 97 NY2d 678 [2001]). In any event, that contention lacks merit (see generallyPeople v Bleakley, 69 NY2d 490, 495 [1987]). The jury reasonably could have found thatdefendant engaged in " '[s]exual contact' " when he touched the victim's buttocks (§ 130.00[3]; see Matter of Kenny O., 276 AD2d 271, 272 [2000], lv denied 96 NY2d 701[2001]; People v Felton, 145 AD2d 969, 971 [1988], lv denied 73 NY2d 1014[1989]), and that such touching was "for the purpose of gratifying [defendant's] sexual desire"(§ 130.00 [3]; see People vStewart, 57 AD3d 1312, 1315 [2008], lv denied 12 NY3d 788 [2009], certdenied 558 US —, 130 S Ct 1047 [2010]). With respect to the count chargingdefendant with sexual abuse in the first degree, the testimony of the victim that she was asleepwhen defendant began touching her was legally sufficient to establish the element of physicalhelplessness (see People v Smith,16 AD3d 1033, 1034 [2005], affd 6 NY3d 827 [2006], cert denied 548 US905 [2006]; see generally § 130.00 [7]), even in the absence of evidence that sleepwas induced by drug or alcohol use (see People v Irving, 151 AD2d 605, 605-606 [1989];see generally People v Manning, 81AD3d 1181, 1181-1182 [2011]). With respect to the count charging defendant with sexualabuse in the third degree, the People presented legally sufficient evidence that the victim was 16years old at the time of the incident and thus incapable of consenting (see § 130.05[2] [b]; [3] [a]).
We reject defendant's further contention that County Court erred in failing to give the jury amissing witness charge with respect to the victim's mother (see generally People vKitching, 78 NY2d 532, 536-537 [1991]; People v Gonzalez, 68 NY2d 424, 427-428[1986]). Defendant's request for that charge was untimely because it was not made until bothparties had rested, rather [*2]than at the close of the People'sproof, when defendant became "aware that the witness would not testify" (People vHayes, 261 AD2d 872, 873 [1999], lv denied 93 NY2d 1019 [1999]). In any event,we conclude that the People demonstrated that the victim's mother was unavailable (seegenerally Kitching, 78 NY2d at 536-537), inasmuch as her "whereabouts [were] unknownand that diligent efforts to locate [her had] been unsuccessful" (Gonzalez, 68 NY2d at428).
Contrary to defendant's contention, he was not deprived of his constitutional right to presenta defense when the court barred one of his potential witnesses from testifying concerning certainstatements made by the victim's mother. In those statements, the victim's mother allegedlythreatened to accuse defendant of the crimes at issue as part of an extortion scheme. The "right topresent a defense does not give criminal defendants carte blanche to circumvent the rules ofevidence" (People v Hayes, 17NY3d 46, 53 [2011], cert denied 565 US —, 132 S Ct 844 [2011] [internalquotation marks omitted]). The courts therefore have the discretion to exclude evidence sought tobe introduced by a defendant where such evidence is irrelevant or constitutes hearsay, and itsprobative value is "outweighed by the dangers of speculation, confusion, and prejudice"(id. at 54; see People vProcanick, 68 AD3d 1756, 1756 [2009], lv denied 14 NY3d 844 [2010]), orwhere such evidence is "too slight, remote or conjectural to have any legitimate influence indetermining the fact in issue" (People v Martinez, 177 AD2d 600, 601 [1991], lvdenied 79 NY2d 829 [1991]). Finally, the sentence is not unduly harsh or severe.Present—Centra, J.P., Peradotto, Sconiers and Martoche, JJ.