| People v Simmons |
| 2013 NY Slip Op 01296 [103 AD3d 1027] |
| February 28, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vWilliam F. Simmons, Appellant. |
—[*1] Shane A. Zoni, Special Prosecutor, Valatie, for respondent.
Spain, J. Appeal from a judgment of the County Court of Columbia County (Czajka,J.), rendered January 26, 2011, upon a verdict convicting defendant of the crime ofsexual abuse in the first degree.
Following a jury trial, defendant was convicted as charged of sexual abuse in the firstdegree after an incident in which he subjected a young female relative to sexual contact.The victim provided sworn testimony, as did her mother, recounting that she was born inAugust 2000 and the sexual contact incident occurred in April 2010 when she was nineyears old. Defendant entered the victim's bedroom while she was sleeping and got in bedwith her, and then made contact between his hand and her vaginal area under herclothing and asked her to undress. The child immediately ran from her bedroom andreported it to her mother, who found defendant still in the victim's bed. Sentenced toseven years in prison followed by 10 years of postrelease supervision, defendant nowappeals.
Initially, defendant is correct that the trial judge who presided over his criminal trial,who was thereafter elected District Attorney of Columbia County in November 2011, isprecluded from acting in that prosecutorial capacity as the respondent on this appeal(see Judiciary Law § 17; Matter of Czajka v Koweek, 100 AD3d 1136 [2012], lvdenied 20 NY3d 857 [2013]). However, the issue of the District Attorney'sdisqualification is moot, given that County Court (Koweek, J.) issued an amendeddecision and order dated May 30, 2012 (effective June 5, 2012) granting defendant'smotion to disqualify the District Attorney from responding to this appeal and appointinga Special Prosecutor to represent the People in defendant's appeal herein (see Matterof Hearst Corp. v Clyne, 50 NY2d 707, 714 [1980]). The Special Prosecutorthereafter assumed the role of respondent on this appeal and filed a brief, and defendantis entitled to no other relief.
Defendant's challenges to the sufficiency of the indictment, the legal sufficiency ofthe evidence, and County Court's (Czajka, J.) jury instruction, based upon the omissionof any reference to the victim's lack of consent, are unpreserved for our review and,finding no error, we discern no reason to exercise our interest of justice jurisdiction totake corrective action (see CPL 470.15 [3] [c]; [6] [a]). Defendant was chargedwith sexual abuse in the first degree for subjecting the victim to sexual contact when shewas under 11 years old (see Penal Law § 130.65 [3]), for which lack ofconsent is an element (see People v Cratsley, 86 NY2d 81, 86 [1995]). The law,however, deems a child under age 17 to be incapable of consenting to sexual acts, andthat presumption is irrebuttable (see id. at 86 n 3; Penal Law § 130.05 [2][b]; [3] [a]).
First, defendant's challenge to the factual sufficiency of the indictment due to itsfailure to allege lack of consent is unpreserved as it was neither raised in a pretrialmotion nor at trial (see People vOrcutt, 49 AD3d 1082, 1084 [2008], lv denied 10 NY3d 938 [2008]).This omission did not constitute a jurisdictional defect so as to allow it to be raised forthe first time on appeal (see People v Iannone, 45 NY2d 589, 600-601 [1978])."An indictment is rendered jurisdictionally defective only if it does not charge thedefendant with the commission of a particular crime, by, for example, failing to allegeevery material element of the crime charged, or alleging acts that do not equal a crime atall" (People v Hansen, 95 NY2d 227, 231 [2000]; see People v Iannone,45 NY2d at 600). "The incorporation by specific reference to the statute operates withoutmore to constitute allegations of all the elements of the crime" (People vD'Angelo, 98 NY2d 733, 735 [2002] [citations omitted]). Here, the indictmentcharged defendant with a particular crime on a specified date, put him on notice of thenature of the "sexual contact" alleged, cited the statutory subsection and alleged that thevictim "was less than [11] years old," rendering her incapable of consent as a matter oflaw (see Penal Law § 130.05 [3] [a]); this obviated the need to alsoredundantly allege her lack of consent in the indictment. "Thus, the indictment served allof its essential functions and defendant's challenge to any nonjurisdictional deficiency inthe factual allegation . . . was waived" (People v Orcutt, 49 AD3dat 1085).
Next, with regard to defendant's challenge to the legal sufficiency of the evidenceconcerning the victim's lack of consent, he made only a general motion to dismiss at theclose of the People's proof, which was not renewed after the defense rested, therebyfailing to preserve this claim (see People v Gray, 86 NY2d 10, 19 [1995];People v Orcutt, 49 AD3d at 1085). Were this issue properly before us, we wouldfind that the evidence established beyond a reasonable doubt that the victim was underthe age of 11 at the time that defendant subjected her to sexual contact, and she wastherefore legally incapable of consent (see People v Ramos, 19 NY3d 133, 136 [2012]; Peoplev Cratsley, 86 NY2d at 85; People v Bleakley, 69 NY2d 490, 495 [1987]).As for defendant's complaint that County Court's charge to the jury should have includedan explanation of lack of consent, this is also unpreserved as defendant raised noobjection to the charge as given (see People v Tucker, 55 NY2d 1, 9 [1981]; People v March, 96 AD3d1101, 1102 [2012]). The charge specified that the People bore the burden of provingbeyond a reasonable doubt that the victim was less than 11 years old at the time thatdefendant subjected [*2]her to sexual contact which, as amatter of law, renders her incapable of consent. While it is certainly preferable for trialcourts to adhere to the pattern jury charge (see CJI2d[NY] Penal Law §130.65 [3]), we do not find that counsel was ineffective for failing to object to the chargeas given (see People vHeier, 90 AD3d 1336, 1339 [2011], lv denied 18 NY3d 994 [2012]).Further, defendant was not deprived of the right to be present at a material stage of thetrial when counsel briefly approached the bench—during the testimony of theofficer who had questioned defendant about this incident—and the prosecutornotified defense counsel as to what he expected the officer would next testify(see CPL 260.20; People v Spotford, 85 NY2d 593, 596 [1995];People v Rodriguez, 85 NY2d 586, 590 [1995]).[FN*] There was no "potential for . . . defendant to meaningfully participate" inthat discussion, which did not concern "factual matters about which . . .defendant might have peculiar knowledge that would be useful" (People v Fabricio, 3 NY3d402, 406 [2004] [internal quotation marks and citation omitted]). The sidebar did notconcern Molineux prior bad act material, was not an informalVentimiglia hearing (see id.; see also People v Spotford, 85NY2d at 597; People v Rodriguez, 85 NY2d at 590-591) and did not concern theadmissibility of proposed testimony (see People v Turaine, 78 NY2d 871, 872[1991]). Defendant's presence was not necessary.
Likewise unpreserved is defendant'sclaim that County Court's instruction to the jury, provided at his request, regarding hisdecision not to testify was in error, as no timely objection was raised at trial, and thenarrow exception is inapplicable because the charge as given did not "unambiguouslyconvey[ ] to the jury that the defendant should have testified" (People v Autry, 75NY2d 836, 839 [1990]; see CPL 300.10 [2]). The statute, like the pattern jurycharge, advises the jury that "[t]he fact that [the defendant] did not testify is not a factorfrom which any inference unfavorable to the defendant may be drawn" (CPL 300.10 [2];accord CJI2d[NY] Defendant's Conduct—Defendant Who Does NotTestify). We agree that the preferred course, upon the request of a nontestifyingdefendant, is to charge that specific statutory language "without elaboration" (Peoplev Torres, 213 AD2d 503, 503 [1995], lv denied 88 NY2d 996 [1996]), ratherthan the variant language chosen by the court here. Were this issue properly before us,however, we would not find that the charge impermissibly conveyed that defendantshould have testified.
Finally, given defendant's family relationship to the child, his lack of remorse andfailure to accept responsibility for his actions and their affect on this child now and in thefuture, we perceive no extraordinary circumstances or abuse of discretion warranting areduction of the sentence in the interest of justice (see CPL 470.15; People v Collins, 56 AD3d809, 811 [2008], lv denied 11 NY3d 923 [2009]).
Rose, J.P., Stein and McCarthy, JJ., concur. Ordered that the judgment is affirmed.
Footnote *: The record reflects thatthe prosecutor merely advised that the officer would recount that defendant was asked ifhe "smok[ed] anything that day," to which defendant had replied "no"; defense counselconsented to the question being asked (there is no claim that the defense did not receivethe required notice of defendant's statement to police), and the officer so testified.