| People v Hayes |
| 2013 NY Slip Op 02108 [104 AD3d 1050] |
| March 28, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v DavidW. Hayes, Appellant. |
—[*1] James A. Murphy III, District Attorney, Ballston Spa (Nicholas E. Tishler ofcounsel), for respondent.
Spain, J. Appeal from a judgment of the County Court of Saratoga County (Drago,J.), rendered August 14, 2009, upon a verdict convicting defendant of the crimes ofsexual abuse in the first degree (four counts), course of sexual conduct against a child inthe second degree, sexual abuse in the second degree (12 counts), sexual abuse in thethird degree (four counts) and endangering the welfare of a child.
In January 2008, the victim, then age 15, disclosed to one of her parents thatdefendant had been subjecting her to sexual contact by touching her breasts and vaginalarea. Defendant, a 39-year-old relative of the victim, was employed in a position inwhich he traveled frequently—for weeks or months at a time—and, whennot deployed out of town, he lived with the victim's family during periods ranging fromdays to months. Upon defendant's return to the area from a business trip, he wasquestioned by investigators with the State Police, received Miranda warnings andmade certain admissions; he signed a written statement and was arrested. Subsequently,defendant was indicted on the following 31 criminal counts alleging sexual contactperpetrated against the victim from the winter of 2002-2003, when the victim was 10years of age, up until the fall of 2007, when the victim was 15 years of age: four countsof first degree sexual abuse (victim under age 11); 10 counts of course of sexual conductagainst a child in the second degree (victim less than 11 or 13); 12 counts of seconddegree sexual abuse (victim under age 14); four counts of third degree sexual abuse(nonconsensual sexual contact); and endangering the welfare of a child.[*2]
Defendant's motion to suppress his statements topolice was denied. At the close of proof at trial, upon the People's motion, count8[FN1]of the indictment charging course of sexual conduct against a child in the second degreewas amended (to expand the dates[FN2]) and the remaining nine counts ofcourse of sexual conduct against a child were dismissed (i.e., counts 5-7, 9-14). Thevictim, her mother, the investigators and defendant testified. Defendant was convicted bya jury of the remaining 22 counts and sentenced to an aggregate prison term of 12 yearsto be followed by postrelease supervision. Defendant now appeals.
Initially, as the People now concede, defendant's convictions of sexual abuse in thesecond degree under counts 15-21 of the indictment must be dismissed as inclusoryconcurrent counts of amended count 8. Counts 15-21 and amended count 8 cover thesame time period: winter 2003-2004 through summer 2005. Amended count 8, course ofsexual conduct against a child in the second degree, as charged to the jury,[FN3]required proof that over a period of not less than three months, defendant, being 18 yearsold or more, engaged in two or more acts of sexual contact with a child less than 13(see Penal Law §§ 130.00 [3]; 130.80 [1] [b]). Likewise, sexualabuse in the second degree as charged in counts 15-21 required proof that defendantsubjected a child less than 14 to sexual contact (see Penal Law § 130.60[2]). Given that it was, here, "impossible to commit [the greater crime] withoutconcomitantly committing, by the same conduct, [the lesser offense]" (CPL 1.20 [37]; see People v Beauharnois, 64AD3d 996, 999-1000 [2009], lv denied 13 NY3d 834 [2009]), the sexualabuse counts (15-21) covering the same time period against the then under age 13 victimare lesser included offenses of amended count 8 charging course of sexual conductagainst a child (see CPL 300.30 [4]). While defendant did not preserve this issueat trial by objecting to County Court's failure to submit the lesser charges "in thealternative only" (CPL 300.40 [3] [b]), as a matter of law "[a] verdict of guilty upon thegreatest count submitted is deemed a dismissal of every lesser count submitted" (CPL300.40 [3] [b]; see People vCordato, 85 AD3d 1304, 1307 [2011], lv denied 17 NY3d 815 [2011];People v Beauharnois, 64 AD3d at 999-1000; People v Horton, 46 AD3d1225, 1227 [2007], lv denied 10 NY3d 766 [2008]). Thus, we modify thejudgment by reversing defendant's convictions under counts 15, 16, 17, 18, 19, 20 and 21for sexual abuse in the second degree, and those counts of the indictment must bedismissed (see People v Grier, 37 NY2d 847, 848 [1975]).
Next, defendant argues that all counts charging sexual abuse in the first degree(counts [*3]1-4) and sexual abuse in the second degree(15-26[FN4]) shouldhave been dismissed as duplicitous on the ground that while they were facially valid, thevictim testified at trial to multiple instances of sexual contact during each charged period(see CPL 200.30 [1] [each count "may charge one offense only"]; People v Black, 65 AD3d811, 813 [2009], lv denied 13 NY3d 905 [2009]). This claim is unpreservedfor our review, as defendant did not specifically raise it by appropriate objection either inhis pretrial motion to dismiss the indictment[FN5]or at trial[FN6](see CPL 470.05), and preservation rules apply to duplicity claims (see People v Becoats, 17NY3d 643, 650-651 [2011], cert denied 566 US —, 132 S Ct 1970[2012]). We decline to take corrective action in the interest of justice (see CPL470.15 [3] [c]) given that the indictment as a whole (implicitly) and the bill of particulars(expressly) reflect that the victim alleged two or more instances of sexualcontact[FN7]for the time periods covered in each count of sexual abuse in the first and second degrees(see People v Wright, 22AD3d 873, 875 [2005], lv denied 6 NY3d 761 [2005]; see also People v Van Ness, 43AD3d 553, 554 [2007], lv denied 9 NY3d 965 [2007]). The defense, havingunsuccessfully raised other duplicity claims prior to trial, nonetheless proceeded to trialwithout objection (see People v Becoats, 17 NY3d at 651). Had a timelyobjection on this specific ground been raised, the People would have had an opportunity,prior to or during trial, to amend the indictment or bill of particulars (see CPL200.70 [1]; 200.95 [8]; 210.20 [3] [a defendant must raise all possible groundschallenging an indictment in his or her pretrial motion]; 255.20).
The balance of defendant's convictions[FN8]were supported by legally sufficient evidence and were not against the weight of credibleevidence (see People v Bleakley, 69 NY2d 490, 495 [1987]). Defendant'schallenge to the legal sufficiency of the evidence focuses on the proof that his sexualcontact with the victim's "sexual or other intimate parts" was "for the purpose ofgratifying sexual desire of either party" (Penal Law § 130.00 [3]), an element ofcourse of sexual conduct against a child in the second degree (count 8), as well as sexualabuse in the first degree (counts 1-4), sexual abuse in the second degree (counts 22-26)and sexual abuse in the third degree (counts 27-30). The victim testified that initially,during the first two specified seasons, defendant touched her breasts and vaginal areawith his hands over her clothes and, thereafter, he touched her under her clothes; thisoccurred in her mother's or her own bed or in the bathroom, usually when no one elsewas at home and occasionally when another family member was asleep in another room.Her testimony regarding defendant's disturbing statements to her during sexual contactwhen she told him to stop (he refused) strongly supports the inference that it was for thepurpose of defendant's sexual gratification (see People v Watson, 281 AD2d 691,697-698 [2001], lv denied 96 NY2d 925 [2001]). When confronted byinvestigators, defendant admitted that the victim's allegations may be "all true," that hemay have had inadvertent contact with the victim's breasts and vagina while laying downwith her while hugging her or rubbing her shoulders, thighs and neck; he claimed that itwas done in a nonsexual way but he "[did not] remember everything" and may have"blacked out" and he did not think she was lying. Given the foregoing, defendant's sexualgratification motive can be readily inferred from his conduct in subjecting the youngvictim to repeated unwanted touching of her intimate parts (see People v King, 79 AD3d1277, 1279 [2010], lv denied 16 NY3d 860 [2011]; People v Weber, 40 AD3d1267, 1268 [2007], lv denied 9 NY3d 927 [2007]; People v Watson,281 AD2d at 697-698). Viewing the evidence in the light most favorable to the People(see People v Cabey, 85 NY2d 417, 420 [1995]) and giving them the benefit ofevery favorable inference (see People v Bleakley, 69 NY2d at 495), we find theevidence to be legally sufficient to support all of the convictions.
With regard to defendant's challenge to the weight of the evidence, which relies onhis testimony denying the allegations of sexual contact and disavowing much of hissigned statement to police, we accord deference to the jury's determination to credit thevictim's account (see People v Bleakley, 69 NY3d at 495). Upon exercising ourfactual review power, we find that the jury properly rejected defendant's testimony andimplausible explanations, and properly drew the inference that defendant's conduct wasfor the purpose of sexual gratification (see People v Stewart, 57 AD3d 1312, 1315 [2008], lvdenied 12 NY3d 788 [2009], cert denied 558 US 1116, 130 S Ct 1047[2010]). While the victim could not recall a lot of details about each of the incidents,many of which had occurred years earlier—beginning when she was 10 yearsold—and there was no physical or other evidence to corroborate her testimony,these shortcomings were fully explored at trial. The victim's testimony that defendant hadsubjected her to this repeated sexual contact in her home for each time periodcharged—while terse and restrained—was unshaken, even uponcross-examination; the jury was entitled to believe her, and to discredit defendant'scontrary testimony and efforts to undermine admissions in his signed statement to police.The verdict was supported by the weight of the credible evidence (see People v Danielson, 9NY3d 342, 348-349 [2007]).
Finally, we must remit for resentencing only with regard the periods of postreleasesupervision on counts 1-4. Upon defendant's convictions on those counts for sexualabuse in the first degree, County Court imposed four determinate consecutive sentenceswith an aggregate of 12 years, with three years of postrelease supervision on each. Therecord reflects that those periods of postrelease supervision were apparently imposedconsecutively. By statute, "[w]hen a person is subject to two or more periods ofpost-release supervision, such periods shall merge [*4]with and be satisfied by discharge of the period ofpost-release supervision having the longest unexpired time to run" (Penal Law former§ 70.45 [5] [c] [emphasis added]; see People v Kennedy, 78 AD3d 1477, 1479 [2010], lvdenied 16 NY3d 798 [2011]). Thus, the postrelease supervision terms merge (see People v Johnson, 76AD3d 1103, 1105 [2010], lv denied 16 NY3d 832 [2011]). Ordinarily, wewould simply indicate that the terms of postrelease supervision merge (see e.g.People v Passino, 104 AD3d 1060 [2013] [decided herewith]; People v Dukes, 14 AD3d732, 733 [2005], lv denied 4 NY3d 885 [2005]). Here, however, remittal isnecessary because the court indicated its overall objective to impose the maximum periodof postrelease supervision, but did not do so properly. Sexual abuse in the first degreeunder counts 1-4 is a class D violent felony offense (see Penal Law former§ 70.02 [1] [c]; former § 70.80 [1] [b]) for which a term of between 3 and10 years of postrelease supervision must be imposed upon the determinate sentencesherein (see Penal Law former § 70.45 [2-a] [d]); the court imposedseparate terms of three years of postrelease supervision on each sentence under counts1-4, but impermissibly achieved its objective by making them consecutive. Thus, wemust remit to allow the court to clarify the appropriate terms of postrelease supervisionon counts 1-4.
We have fully examined defendant's remaining contentions and find them to lackmerit, including his challenges to County Court's rulings regarding the defense'scross-examination of the victim, and conclude that there was no improper deprivation ofdefendant's right to confront witnesses, to present a defense or to test witness credibility.
Rose, J.P., Stein and Egan Jr., JJ., concur. Ordered that the judgment is modified, onthe law, by reversing (1) defendant's convictions of sexual abuse in the second degreeunder counts 15, 16, 17, 18, 19, 20 and 21 of the indictment and (2) so much of thesentence as imposed periods of postrelease supervision under counts 1, 2, 3 and 4 of theindictment; counts 15, 16, 17, 18, 19, 20 and 21 dismissed, the sentences imposedthereon vacated, and matter remitted to the County Court of Saratoga County forresentencing of the periods of postrelease supervision on counts 1, 2, 3 and 4; and, as somodified, affirmed.
Footnote 1: For ease of reference,we will use the number assigned to each count in the indictment and verdict sheet.
Footnote 2: The amendment tocount 8 expanded the original time frame of winter 2003-2004 by adding the period up toand including summer 2005, thereby absorbing the time periods alleged in counts 9-13,which also charged course of sexual conduct against a child in the second degree; counts5-7 and 9-14 were then dismissed.
Footnote 3: Upon agreement of theparties, the charge to the jury under amended count 8 alleged only that defendantsubjected the victim to "sexual contact" (Penal Law § 130.00 [3]) and did notinclude the broader elements of "sexual conduct" (Penal Law § 130.00 [10]).
Footnote 4: As counts 15-21 aredismissed herein as lesser included offenses, counts 1-4 and 22-26 are the subjects ofdefendant's duplicity claim.
Footnote 5: Defendant's pretrialmotion for duplicity was premised on Penal Law § 130.80 (2), which bars asubsequent prosecution for sex offenses occurring in the same time period as acourse of sexual conduct against a child conviction. Moreover, defendant onlyspecifically requested dismissal of counts 5-14 for course of sexual conduct against achild and did not specifically request dismissal of the sex abuse counts.
Footnote 6: After County Courtgranted the People's motion to amend count 8 and to dismiss all of the remaining courseof sexual conduct counts at the close of proof, defense counsel broadly "move[d] todismiss all of the counts as duplicitous," objecting to amending the indictment. Defensecounsel did not argue that the sexual abuse counts were duplicitous based upon thevictim's trial testimony.
Footnote 7: The multiple instancesof sexual contact for each period were alleged either in the individual sexual abusecounts themselves or in the corresponding course of sexual conduct against a child countfor that same time period.
Footnote 8: Here, we address theremaining counts, 1-4, 8 and 22-31.