| People v Jabaut |
| 2013 NY Slip Op 07875 [111 AD3d 1140] |
| November 27, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v AdamJabaut, Appellant. |
—[*1] Andrew J. Wylie, District Attorney, Plattsburgh (Timothy G. Blatchley of counsel),for respondent.
Spain, J. Appeals (1) from a judgment of the Supreme Court (Lawliss, J.), renderedSeptember 8, 2008 in Clinton County, upon a verdict convicting defendant of the crimesof course of sexual conduct against a child in the second degree, criminal sexual act inthe first degree, predatory sexual assault against a child (three counts), rape in the firstdegree (two counts) and rape in the third degree, and (2) by permission, from an order ofsaid court, entered January 30, 2012 in Clinton County, which denied defendant's motionpursuant to CPL article 440.10 to vacate the judgment, without a hearing.
Defendant was charged in a 14-count indictment with various sex crimes related tohis sexual abuse of two girls: victim A, a female relative born in August 1994, for crimesoccurring when she was under the age of 13; and victim B, a neighbor born in August1990, for crimes occurring when she was between the ages of 9 and 16. After aHuntley hearing, Supreme Court denied defendant's motion to suppress hisstatements to police, admitting certain sex acts against victim A, but denying allallegations related to victim B. After a jury trial at which both victims testified, one countwas dismissed and two counts were reduced, and defendant was convicted as to sevencounts pertaining to victim A: course of sexual conduct against a child in the seconddegree, criminal sexual act in the first degree, three counts of predatory sexual assaultagainst a child and two counts of rape in the first degree. Defendant was also convictedof rape in the third [*2]degree as to victim B.[FN1] Upon his convictions, defendant was sentenced to an aggregate prison term of83
Initially, we disagree with defendant's claim that Supreme Court erred in denying hismotion to suppress the oral and written statements he made to police on October 16,2007, as his right to counsel was not violated when police declined his requests to callhis wife during questioning. The uncontroverted Huntley testimony supports thecourt's conclusion that, after victim A's disclosure, defendant voluntarily went to theState Police barracks with a state trooper, where he was advised of and validly waivedhis Miranda rights and agreed to speak with police investigators (see People v Cole, 24 AD3d1021, 1022-1023 [2005], lv denied 6 NY3d 832 [2006]). At no point duringthe three-hour questioning did defendant ask to speak with or call an attorney, or to callfamily or friends to assist in contacting an attorney, so as to invoke his right to counsel(see People v Lopez, 16NY3d 375, 380 [2011]). While defendant's requests to call his wife were denied, hedid not indicate that he wanted to seek her assistance in securing an attorney or legaladvice; instead, when given an opportunity to explain his request to call his wife, he saidthat he "wasn't sure" what he would say to her, thereby failing to unequivocally assert hisright to counsel (see People v Glover, 87 NY2d 838, 839 [1995]; People v Kuklinski, 24 AD3d1036, 1037 [2005], lv denied 7 NY3d 758 [2006]). Thus, it cannot be saidthat police "sealed off the most likely avenue by which the assistance of counsel [could]reach him by means of deception and trickery" (People v Townsend, 33 NY2d37, 41 [1973]; see People v Salaam, 83 NY2d 51, 55-56 [1993]; cf. People vTalamo, 55 AD2d 506, 507 [1977]).
The police accordingly did not foreclose defendant's opportunity to invoke his rightto counsel and defendant, despite being a competent adult who was capable of invokingthat right at any time, failed to do so. Additionally, there was no evidence that his wifehad retained counsel for him, or that he sought to contact her for that purpose, and hiswhereabouts were not concealed from her or from a potential attorney (see People vSalaam, 83 NY2d at 55-56; People v Crimmins, 64 NY2d 1072, 1073[1985]; People v Wells, 18AD3d 1022, 1023-1024 [2005], lv denied 5 NY3d 796 [2005]; cf.People v Bevilacqua, 45 NY2d 508, 513 [1978]; People v Townsend, 33NY2d at 41). In the absence of any threats, deception or trickery or any direct or indirectrequest for counsel, the People satisfied their burden of demonstrating that defendant'sstatements were voluntary and obtained in compliance with his constitutional rights.Defendant's suppression motion was properly denied.
Next, we reject defendant's contention that the convictions were against the weightof the evidence. Inasmuch as a different verdict would not have been unreasonable, weweigh the relative probative force of the conflicting testimony and the relative strength ofthe competing inferences that can be drawn from the testimony (see People v Danielson, 9NY3d 342, 348 [2007]; People v Bleakley, 69 NY2d 490, 495 [1987]).Victim A, age 13 at trial, testified that defendant began touching her in March 2006,prior to a specific occasion when she was 11 years old and sleeping at defendant's house;she recounted how he touched her vagina that night and, one week later, he did so againunder similar circumstances; defendant continued to do so approximately once a week atvarious locations, and often during the day. She told defendant to [*3]stop each time, which defendant refused, telling her it wastheir "little secret" and she "like[d] it." This testimony established persuasivelydefendant's guilt of course of sexual conduct against a child in the second degree (count1). Victim A also testified that defendant's abuse stopped for a few weeks around herbirthday in August 2006 but that, during this time, he would not talk to her or doanything with her, whereas when he was touching her, he gave her whatever she wanted.This was consistent with defendant's statements to police that he gave victim A what shewanted if she let him touch her.
Victim A further described, in detail, incidents when she was 12 years old inNovember 2006, around Thanksgiving, when defendant forced his mouth on her vaginawhile she was in bed at night and, after Thanksgiving but before Christmas, whendefendant subjected her to sexual intercourse in his bedroom and ejaculated into hisunderwear. This testimony established, convincingly in our view, defendant's guilt ofrape in the first degree (count 4), predatory sexual assault against a child (counts 3 and 5)and criminal sexual act in the first degree (count 2). With regard to the remaining countspertaining to victim A, she testified to a particularly degrading incident in early 2007,when she was still 12 years old, in which defendant pushed her into the bathroom, heldher face down on a dog cage and engaged in forcible sexual intercourse with her. Thisamply demonstrated defendant's guilt of rape in the first degree (count 8) and predatorysexual assault against a child (count 9).
In attacking the weight of the evidence, defendant downplays the significance of hisoral and written statements to police in October 2007. However, while attempting to shiftsome of the blame to victim A, defendant admitted to touching and penetrating hervagina with his fingers, and touching her breasts and "butt" once or twice a weekbeginning a year earlier; he also admitted that he put his mouth on her vagina about oncea month and that, at times, her hand touched his penis. He also claimed that he tried toinsert his penis in her vagina but she told him to stop and he did stop. This providedcompelling additional proof of defendant's crimes against victim A.
Victim B, age 17 at trial, testified that defendant began sexually abusing her whenshe was 10 years old, and that the abuse continued for years. She recounted thatdefendant treated her well, often bought her things and told her she was pretty and hadnice hair. As relevant to defendant's conviction of rape in the third degree of victim Bunder count 14, she testified to an incident in the summer of 2006 in which defendantsubjected her (at age 12 or 13) to sexual intercourse. The incident occurred one eveningon a boat stored in defendant's driveway where the victims had been playing cards.Victim A's testimony corroborated this account in many respects and, while theirrecollections were not identical, they were substantially similar and persuasivelyestablished this crime against victim B. Notably, both victims testified that defendantshowed them pornography at his house, and the parties stipulated that the victims gaveaccurate descriptions of the sexual activity contained on videotapes found in defendant'shome, in a location described by the victims.
Defendant's challenge to the weight of the evidence focuses on the victims' motivesto lie, inconsistencies between the victims' accounts, their lack of specificity andpiecemeal disclosure, the lack of medical evidence, and their credibility, all of whichwere fully explored at trial for the jury. The internal and comparative inconsistencies inthe victims' testimony did not relate to whether the described sexual conduct wasrepeatedly committed by defendant against them (see People v Nowinski, 36 AD3d 1082, 1084 [2007], lvdenied 8 NY3d 989 [2007]), and the jury rejected defendant's claim that theallegations had been fabricated by convicting [*4]defendant of most charges (see People v Warner, 69 AD3d1052, 1054 [2010], lv denied 14 NY3d 894 [2010]). We accord greatdeference to the jury's opportunity to view the victims' testimony and assess theircredibility, as well as their ability to recall the specific details and time frames ofparticular sex crimes, and we discern no reason to disturb that assessment (see People v Cecunjanin, 67AD3d 1072, 1076 [2009], affd 16 NY3d 488 [2011]; People v Weber, 25 AD3d919, 921 [2006], lv denied 6 NY3d 839 [2006]). Given the jury'sdetermination to convict defendant of 8 of 13[FN2] counts submitted to it, the fact that the jury acquitted defendant of some counts as toeach victim (four counts in all) did not necessarily mean that the jury discounted thevictims' credibility as to the remaining counts.
The reasons for the victims' delayed reporting of the ongoing sexual abuse wereprobed in depth at trial, and the jury was aided by the expert testimony of RichardHamill, who explained, in general terms, the many behaviors exhibited by child victimsof sexual abuse, including delayed disclosure, known as child sexual abuseaccommodation syndrome (hereinafter CSAAS) (see People v Carroll, 95 NY2d375, 387 [2000]; see alsoPeople v Spicola, 16 NY3d 441, 465-466 [2011], cert denied 565 US—, 132 S Ct 400 [2011]). Victim A testified that she finally disclosed the abuse toa guidance counselor in school in 2007 because she feared defendant would "move on"to her two younger sisters like he had done when he moved from abusing the oldervictim B to herself, and because defendant had been making threats that he would makeher "pay up" and go "harder and longer" as pay back for his having paid the fee of abreeder to breed her dog. Victim B testified that she did not disclose the abuse when itbegan years earlier because she did not want defendant's wife to refuse to continuebabysitting for her and her younger brother or to get mad at her. She liked being withdefendant's family, where she was treated well aside from the abuse and which shepreferred to her troubled home, in which domestic violence was an ongoing problem.Victim B first revealed the abuse when questioned by police, who had learned of it fromvictim A. Given the foregoing, we do not find that the jury erred in crediting the victims'accounts as to the crimes for which defendant was convicted, or that it failed to give theevidence—including defendant's admissions to police—the weight that itdeserved.
With regard to Hamill's CSAAS testimony, he was very clear that he had not met orexamined the victims or defendant and could not express any opinion as to theircredibility or whether the charged crimes occurred; he at all times stayed within thepermissible parameters of expert testimony explaining the common behaviors of victimsof child sex abuse that the jury may not understand (see People v Spicola, 16NY3d at 465-466; People v Carroll, 95 NY2d at 387; People v Williams,50 NY2d 996, 998 [1980]; People v Greene, 306 AD2d 639, 642-643 [2003],lv denied 100 NY2d 594 [2003]; cf. People v Williams, 20 NY3d 579, 583-584 [2013]). Tobe sure, the better practice is for the trial court to provide a contemporaneous limitinginstruction, repeated during the final charge, clarifying that CSAAS testimony is notoffered as proof of the crime charged (see CJI2d[NY] Expert on a Crime VictimSyndrome; see e.g. People v Kukon, 275 AD2d 478, 479 [2000], lvdenied 95 NY2d 936 [2000]; People v Archer, 232 AD2d 820, 822 [1996],lv denied 90 NY2d 938 [1997]; cf. People v Justice, 99 AD3d 1213, 1215 [2012], lvdenied 20 NY3d 1012 [2013]; People v Gregory, 78 AD3d 1246, 1247-1248 [2010],lv denied 16 NY3d 831 [2011]). However, defense counsel did not request suchan [*5]instruction or object to the final charge as given;thus, this issue is not preserved (see People v Adoms, 92 AD3d 450, 451 [2012], lvdenied 19 NY3d 970 [2012]; People v Wright, 5 AD3d 873, 876-877 [2004], lvdenied 3 NY3d 651 [2004]). Similarly, defendant raised no objections to theprosecutor's summation remarks related to Hamill's testimony and, as such, any issuesrelated thereto are not preserved for our review.
Reviewing these issues in the context of defendant's ineffective assistance of counselclaim, we find that he was not deprived of a fair trial or the effective assistance ofcounsel owing to counsel's failure to request a limiting instruction or to object to thesummation. Indeed, the prosecutor repeatedly made clear in her summation that Hamill"didn't talk to" the victims or defendant, and "didn't know anything about this case." Thisminimized any confusion due to the prosecutor's remarks that Hamill presented"evidence in the case" which "explained to you" and "described what thesekids. . . go through[,] what these girls went through" and "described whythey didn't tell." While isolated prosecutorial summation remarks, taken out of context,may have been unclear or even arguably improper, the summation as a whole urged thatHamill's general testimony "suppl[ied] explanations other than fabrication[s] for [thevictims'] post-molestation behavior," thereby supporting their credibility, and did notimpermissibly argue that Hamill had opined that these crimes had occurred or that thevictims were credible (People v Spicola, 16 NY3d at 466). Thus, the summationargument—that Hamill's testimony regarding the behavioral characteristics ofsexually abused children—was consistent with and explanatory of the victims'behavior in this case and constituted fair comment on the evidence (see People v Martinez, 68AD3d 1757, 1758 [2009], lv denied 14 NY3d 803 [2010]). Moreover, "theprosecutor did not engage in a pervasive pattern of flagrant misconduct so as to requirereversal of defendant's conviction[s]" (People v Sorrell, 108 AD3d 787, 793 [2013]). Givendefendant's admissions to police regarding his sexual abuse of victim A, and victim A'stestimony corroborating defendant's sexual abuse of victim B, the verdicts did not turnsolely on the credibility of one victim, and we are persuaded that the evidence wasoverwhelming and that any error was harmless (see People v Williams, 20 NY3dat 584-585).
Defendant was otherwise provided meaningful representation by counsel, who madeappropriate pretrial motions, effectively cross-examined witnesses, and delivered cogentopening and closing remarks in support of the defense theory—albeitunsuccessful—that the victims had fabricated the allegations and that defendanthad not made admissions to police (see People v Henry, 95 NY2d 563, 566[2000]; People v Benevento, 91 NY2d 708, 714 [1998]). Counsel also obtained areduction of some counts, dismissal of another count, and acquittal on five counts. Withregard to defendant's claim that he was prejudiced by counsel's decision to admit aphotograph of his erect penis, he has not demonstrated the absence of strategic or otherlegitimate explanations for counsel's decision (see People v Benevento, 91 NY2dat 712; People v Rivera, 71 NY2d 705, 709 [1988]). After both victims describedrepeated sexual abuse, including in daylight, when they had an opportunity[FN3] to view defendant's legs and erect penis, defense counsel elicited that neither was able todescribe them or anything unusual or distinctive about them; [*6]defense counsel submitted the pictures in issue todemonstrate that defendant had visible scars on his legs and papules (or bumps) visibleon his erect penis to discredit the victims' accounts. Counsel also used the picture toimpeach their testimony by suggesting that repeated penetration by a penis of this size ona young girl would have left medical evidence, which was not found. There is, thus, nomerit to this claim.
Supreme Court did not abuse its discretion by denying defendant's motion to vacatethe judgment without a hearing (see CPL 440.30 [4]). To the extent thatdefendant claims that the People withheld exculpatory evidence, his witness on that pointeffectively recanted her earlier affidavit and, in view of the People's affidavitsundermining this claim, no issue of fact was presented (see CPL 440.10 [1] [b],[h]; People v Samandarov,13 NY3d 433, 436, 439-440 [2009]). With regard to defendant's claim that newlydiscovered evidence required that his conviction be vacated (see CPL 440.10 [1][g]), defense counsel's ultimate concession that the police interview notes at issue were inhis file belied any claim that the evidence "could have not been discovered before thetrial [and produced at trial] by the exercise of due diligence" (People v Lackey, 48 AD3d982, 983 [2008], lv denied 10 NY3d 936 [2008]). As there was no factualdispute, the court providently decided the motion without a hearing (CPL 440.30 [4]).
Finally, we discern no basis for reducing defendant's sentence. As the aggregatemaximum term of defendant's consecutive sentences included determinate andindeterminate sentences and included three or more violent felony offenses, one of whichis a class B violent felony offense (i.e., counts 2 [criminal sexual act in the first degree],4 and 8 [rape in the first degree]; see Penal Law § 70.02 [1] [a]), byoperation of law, the Department of Corrections and Community Supervision will capdefendant's sentence to a 50-year determinate term (see Penal Law § 70.30[1] [e] [vii]; People v Moore, 61 NY2d 575, 578 [1984]; People v Swinton, 87 AD3d491, 494 [2011], lv denied 18 NY3d 862 [2011]). Given the protracted andgrievous nature of defendant's crimes against two young girls and the impact of thesecrimes on their lives, we find no abuse of discretion or extraordinary circumstanceswarranting a reduction of the sentence in the interest of justice (see People vSorrell, 108 AD3d at 794; People v Shultis, 61 AD3d 1116, 1118 [2009], lvdenied 12 NY3d 929 [2009]).
Lahtinen, J.P., McCarthy and Egan Jr., JJ., concur. Ordered that the judgment andorder are affirmed.
Footnote 1: Defendant was foundnot guilty of two counts as to victim A and three counts as to victim B.
Footnote 2: Count 11 was dismissedat trial based upon insufficient evidence.
Footnote 3: Victim A testified thatshe saw defendant's penis on multiple occasions and up close but did not "examine" itand had not previously seen one. Victim B testified that she closed her eyes during thesexual abuse and never saw defendant's penis, and was not sure if she had seen his legsbut did not recall any marks or scars on them.