| People v Slishevsky |
| 2012 NY Slip Op 05467 [97 AD3d 1148] |
| July 6, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v JasonSlishevsky, Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (Anthony F. Aloi, J.), renderedAugust 11, 2010. The judgment convicted defendant, upon a jury verdict, of course of sexualconduct against a child in the first degree, course of sexual conduct against a child in the seconddegree (two counts), predatory sexual assault against a child, criminal sexual act in the seconddegree (three counts), sexual abuse in the second degree (two counts), sexual abuse in the thirddegree (five counts) and endangering the welfare of a child.
It is hereby ordered that the judgment so appealed from is unanimously reversed as a matterof discretion in the interest of justice and on the law, counts 3, 5, and 7 through 11 of theindictment are dismissed and a new trial is granted on counts 2, 6, and 12 through 17.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of onecount each of predatory sexual assault against a child (Penal Law § 130.96), course ofsexual conduct against a child in the first degree (§ 130.75 [1] [b]) and endangering thewelfare of a child (§ 260.10 [1]), two counts each of course of sexual conduct against achild in the second degree (§ 130.80 [1] [b]) and sexual abuse in the seconddegree (§ 130.60 [2]), three counts of criminal sexual act in the second degree (§130.45 [1]), and five counts of sexual abuse in the third degree (§ 130.55). Viewing theevidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d342, 349 [2007]), we reject defendant's contention that the verdict is against the weight ofthe evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Weagree with defendant, however, that the cumulative effect of evidentiary errors made by CountyCourt, coupled with prosecutorial misconduct, deprived him of his right to a fair trial (see generally People v Ballerstein, 52AD3d 1192, 1192-1193 [2008]). We note at the outset that, although defendant failed topreserve certain evidentiary errors and instances of prosecutorial misconduct for our review(see CPL 470.05 [2]), we exercise our power to address them as a matter of discretion inthe interest of justice (see CPL 470.15 [6] [a]), in view of our " 'overriding responsibility'to ensure that 'the cardinal right of a defendant to a fair trial' is respected in every instance" (People v Wlasiuk, 32 AD3d 674,675 [2006], lv dismissed 7 NY3d 871 [2006], quoting People v Crimmins, 36NY2d 230, 238 [1975]).[*2]
The court erred in admitting testimony elicited by theprosecutor establishing that Child Protective Services (CPS) "indicated" a report, following aninvestigation of the subject victim's allegations, which demonstrated that CPS "found credibleevidence that there [was] some abuse or maltreatment." Such evidence "intruded upon thefunction of the jury to determine whether to credit the victim's [allegations]" (Ballerstein,52 AD3d at 1193; see People v Ciaccio, 47 NY2d 431, 439 [1979]; People v Heil, 70 AD3d 1490,1492 [2010]). Further, we conclude that the court erred in admitting the testimony of a policedetective to the effect that defendant never asked for details of the allegations against him. Thattestimony, which was elicited by the prosecutor, infringed upon defendant's right to remain silent." 'Based on constitutional considerations, it has long been and continues to be the law in thisState that a defendant's silence cannot be used by the People as a part of their direct case' " (People v Maier, 77 AD3d 681, 683[2010]; see People v Whitley, 78AD3d 1084, 1085 [2010]; People vChatman, 14 AD3d 620, 621 [2005]; see generally People v Basora, 75 NY2d992, 993-994 [1990]; People v De George, 73 NY2d 614, 618-619 [1989]). Here, theevidence of defendant's choice to remain silent on the specifics of the allegations "created aprejudicial inference of consciousness of guilt" (Whitley, 78 AD3d at 1085). Further, theprosecutor's comment during summation that the presumption of innocence is a "notion" waspatently improper (see People v Alfaro, 260 AD2d 495, 496 [1999]; People vBussey, 62 AD2d 200, 203-205 [1978]).
Finally, the prosecutor's statement during her cross-examination of the victim's mother thatshe was not testifying honestly was manifestly improper (see People v Bailey, 58 NY2d272, 277 [1983]; People v Russell, 307 AD2d 385, 386 [2003]). As the court recognized,the prosecutor was not entitled to impeach the credibility of the mother's testimony on a collateralissue (see People v Pavao, 59 NY2d 282, 288-289 [1983]; People v Jones, 190AD2d 31, 34 [1993]; see also People v McCright, 107 AD2d 766, 767 [1985]). Althoughdefendant therefore was entitled to "a strong curative instruction" in order to dispel the prejudiceoccasioned by the remark (People vLayton, 16 AD3d 978, 980 [2005], lv denied 5 NY3d 765 [2005]), the courtfailed to give one. The clear impropriety of the prosecutor's remark, in the absence of anappropriate curative instruction, contributed to the cumulative effect of evidentiary errors andprosecutorial misconduct, which deprived defendant of his right to a fair trial (see generallyBallerstein, 52 AD3d at 1192-1193).
We further agree with defendant that several counts of the indictment must be dismissed.Count three of the indictment charges the same crime as count two, and thus count three shouldbe dismissed as multiplicitous (seePeople v Pruchnicki, 74 AD3d 1820, 1822 [2010], lv denied 15 NY3d 855[2010]; People v Moffitt, 20 AD3d687, 690-691 [2005], lv denied 5 NY3d 854 [2005]). Those two counts chargeddefendant with course of sexual conduct against a child in the second degree based upon actsoccurring between September 2001 and June 2003. The People contend that the two counts arenot multiplicitous inasmuch as the victim spent summers living away from defendant, creating aninterruption of approximately two months that was sufficient to end one course of sexual conductand begin another. We reject that contention. A course of sexual conduct conviction may rest onas few as two incidents of sexual conduct "over a period of time not less than threemonths in duration" (Penal Law §§ 130.75 [1]; 130.80 [1] [emphasis added]).Given that the statute thus plainly contemplates the possibility of a single course of sexualconduct with interruptions significantly longer than two months, count three must be dismissed(see Pruchnicki, 74 AD3d at 1822; Moffitt, 20 AD3d at 690-691).
Under the same line of reasoning, count five of the indictment must be dismissed asmultiplicitous of count six because both counts were based upon one course of conduct occurringbetween September 2006 and June 2008 (see Pruchnicki, 74 AD3d at 1822;Moffitt, 20 AD3d at 690-691). Furthermore, we note that count five, which charges course ofsexual conduct against a child in the first degree, is a lesser included offense of count six, whichcharges predatory sexual assault against a child. Count five thus would be subject to dismissal onthat ground as well (see People vBeauharnois, 64 AD3d 996, 999-1001 [2009], lv denied 13 NY3d 834 [2009]),although the [*3]issue is unpreserved for our review (seeCPL 470.05 [2]). We conclude that, although the contentions regarding multiplicity are notpreserved for our review (see id.; People v Kobza, 66 AD3d 1387, 1388 [2009], lv denied 13NY3d 939 [2010]), our review is warranted in the interest of justice because defendant receivedconsecutive sentences on all of the aforementioned counts. Nevertheless, we decline to exerciseour power to review defendant's multiplicity contentions with respect to counts 12 through 16,which are also not preserved for our review.
Defendant preserved for our review his challenge to the legal sufficiency of the evidencewith respect to counts 7 through 11 of the indictment, which charge three counts of criminalsexual act in the second degree and two counts of sexual abuse in the second degree. As thePeople correctly concede, the evidence adduced at trial is legally insufficient to support theconviction with respect to the above counts, which therefore must be dismissed (see generally People v Oberlander, 60AD3d 1288, 1289-1291 [2009]). Finally, defendant's constitutional challenges are raised forthe first time on appeal and are therefore not preserved for our review (see People vMiles, 294 AD2d 930, 930-931 [2002], lv denied 98 NY2d 678 [2002]; see generally People v Baumann & SonsBuses, Inc., 6 NY3d 404, 408 [2006], rearg denied 7 NY3d 742 [2006]; People v Peck, 31 AD3d 1216,1216 [2006], lv denied 9 NY3d 992 [2007]). In any event, those challenges have nomerit.
In light of our determination, we do not address defendant's remaining contentions.Present—Centra, J.P., Peradotto, Carni, Lindley and Sconiers, JJ.