| People v Lashway |
| 2013 NY Slip Op 08549 [112 AD3d 1222] |
| December 26, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v LeeLashway, Appellant. |
—[*1] Richard J. McNally Jr., District Attorney, Troy (Kelly L. Egan of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the County Court of Rensselaer County(Ceresia, J.), rendered December 2, 2010, upon a verdict convicting defendant of thecrimes of predatory sexual assault against a child and endangering the welfare of a child(two counts).
Between June 23, 2009 and October 12, 2009, the victim (born in 2002) and hisyounger brother (born in 2005) spent a significant amount of time at defendant'sresidence in the City of Troy, Rensselaer County. These visits with defendant, whom thechildren's mother described as the boys' "great-great uncle," included overnight visits"every other weekend" and, "depending on what was going on," additional periods oftime during the week. Beginning with the second such visit, defendant inserted a purplevibrator that belonged to his girlfriend into the victim's anus—a practice herepeated on more than five occasions during the time frame in question. As a result,defendant was indicted and charged with—insofar as is relevanthere—predatory sexual assault against a child and endangering the welfare of achild (two counts). Following a jury trial, defendant was convicted of these counts andwas sentenced to a prison term of 25 years to life on the predatory sexual assaultconviction and concurrent one-year terms on the endangering the welfare of a childconvictions. This appeal by defendant ensued.
We affirm. "A witness less than nine years old may not testify under oath unless thecourt is satisfied that he or she understands the nature of an oath. . . . Awitness understands the [*2]nature of an oath if he or sheappreciates the difference between truth and falsehood, the necessity for telling the truth,and the fact that a witness who testifies falsely may be punished" (CPL 60.20 [2]; see People v Alexander, 109AD3d 1083, 1084 [2013]; People v Batista, 92 AD3d 793, 793 [2012], lvdenied 19 NY3d 957 [2012]). "The determination as to whether a child is competentto testify rests primarily with the trial court, which had the opportunity to observe thechild's demeanor and undertake any inquiries necessary to disclose the witness's capacityand intelligence" (People v Spillett, 294 AD2d 605, 606 [2002], lvdenied 98 NY2d 702 [2002] [citation omitted]; see People v Brown, 89 AD3d 1473, 1474 [2011], lvdenied 18 NY3d 955 [2012]). Here, the voir dire of the victim demonstrated that heknew the difference between telling the truth and telling a lie, understood that he was in acourtroom for a "[t]rial"—wherein he would be required to "[t]ell the truth" about"[w]hat happened" when defendant "[m]olested" him—and that he would "get introuble" if he told a lie. Even assuming, as defendant contends, that the victim "gaveperfunctory answers to the court's sometimes leading questions," County Court's inquiryas a whole demonstrated that the victim "understood [he] had a moral duty to tell thetruth" (People v Brown, 89 AD3d at 1474 [internal quotation marks and citationomitted]; see People v Lapi,105 AD3d 1084, 1087 [2013], lv denied 21 NY3d 1043 [2013]).Accordingly, County Court did not abuse its discretion in permitting the victim to givesworn testimony (see People vMendoza, 49 AD3d 559, 560 [2008], lv denied 10 NY3d 937 [2008];People v Munroe, 307 AD2d 588, 591 [2003], lv denied 100 NY2d 644[2003]; People v Donk, 259 AD2d 1018, 1019 [1999], lv denied 93NY2d 924 [1999]; People v Christie, 241 AD2d 699, 700 [1997], lvdenied 90 NY2d 938 [1997]).
Nor are we persuaded that County Court erred in admitting the testimony of thesexual assault nurse examiner (hereinafter SANE) who examined the victim and hisbrother in December 2009. "A trial court has the initial responsibility of evaluatingwhether an expert possesses the requisite skill, training, education, knowledge orexperience from which it can be assumed that the information imparted or the opinionrendered is reliable" (People v Burt, 270 AD2d 516, 518 [2000] [internalquotation marks and citations omitted]). To that end, "[the] expert's competency can bederived from either formal training or [l]ong observation and actual experience"(id. [internal quotation marks and citations omitted]). Notably, "[t]headmissibility and scope of expert testimony are [matters] committed to the sounddiscretion of the trial court" (People v Heath, 49 AD3d 970, 972-973 [2008], lvdenied 10 NY3d 959 [2008]; see People v Heidelmark, 214 AD2d 767, 770[1995], lv denied 85 NY2d 973 [1995]; see also People v Lupo, 92 AD3d 1136, 1138 [2012]).
Here, the witness, who had been a registered nurse for more than 25 years, testifiedthat she completed a 40-hour course and the corresponding clinical work required tobecome certified as an adult SANE and, as of the time of trial, had been practicing in thatcapacity for almost three years. The witness further testified that she also completed anadditional 40-hour course in order to become certified as a pediatric SANE and had takenseminars offered by the State Police on sexual abuse and child abuse. Although thewitness admittedly was still performing her clinical work—and was beingshadowed by another SANE—at the time that she examined the victim and hisbrother, her education and training provided a sufficient foundation for her testimony (see generally People v Sudler,75 AD3d 901, 905 [2010], lv denied 15 NY3d 956 [2010]; People v Prowse, 60 AD3d703, 704 [2009], lv denied 12 NY3d 858 [2009]), and her relative lack ofexperience as a pediatric SANE (compare People v Morehouse, 5 AD3d 925, 928 [2004],lv denied 3 NY3d 644 [2004]) went to the weight to be accorded to hertestimony, not its admissibility. In short, we are of the view that County Court"providently exercised its discretion in permitting [her] to provide expert testimony" (People v Verrilli, 69 AD3d963, 964 [2010], lv [*3]denied 14 NY3d 894[2010]).
Defendant's challenge to the legal sufficiency and the weight of the evidence isequally unavailing. Insofar as is relevant here, "[a] person is guilty of predatory sexualassault against a child when, being [18] years old or more, he or she commits the crimeof . . . course of sexual conduct against a child in the first degree. . . and the victim is less than [13] years old" (Penal Law § 130.96).To that end, "[a] person is guilty of course of sexual conduct against a child in the firstdegree when, over a period of time not less than three months in duration: (a) he or sheengages in two or more acts of sexual conduct, which includes at least one act of. . . aggravated sexual contact, with a child less than [11] years old" (PenalLaw § 130.75 [1]). Here, there is no dispute that defendant (born in 1947) and thevictim (born in 2002) fell within the statutory age requirements at the time that theunderlying crimes were committed, and there can be no question that inserting a vibratorinto the victim's anus (on more than five occasions) constitutes aggravated sexual contact(see Penal Law § 130.00 [9], [11]). Hence, our inquiry distills to whetherthe People established that the acts in question occurred "over a period of time not lessthan three months in duration" (Penal Law § 130.75 [1] [a]) and that the victimincurred "physical injury" in the form of "substantial pain" as a result thereof (Penal Law§§ 10.00 [9]; 130.00 [11]).
As to the temporal element, the victim testified that he started going to defendant'shouse during the "summer," that defendant first gave him a "bad touch"—definedby the victim as defendant inserting the purple vibrator into his "tushy" on more than fiveoccasions—on his second visit to defendant's residence and that at least one of thebad touches occurred after he went back to school. Although thistestimony—standing alone—would not be sufficient to establish that thesexual conduct occurred over a period of time not less than three months in duration, thisdeficiency was cured by the testimony offered by the victim's mother and defendant'sgirlfriend. In this regard, the victim's mother testified that the victim first spent the nightat defendant's residence on the last day of school—June 23, 2009—and lastspent the night there on October 12, 2009. Between those two dates, the victim was atdefendant's residence "[a]ll the time, every other weekend, four times a week, three timesa week, depending on what was going on." Similar testimony was offered by defendant'sgirlfriend, who confirmed that—between June 2009 and October 2009—themother's children frequently visited and spent the night at the residence that she sharedwith defendant. Defendant's girlfriend further acknowledged that the victim "slept overthe most"—an interval defined as "[a]lmost every weekend" and "[s]ometimesduring the week." Such testimony, coupled with the victim's testimony that the badtouches occurred on more than five occasions, is more than sufficient to establish thatdefendant engaged in the requisite acts of sexual conduct over the period of time set forthin the statute.
As to the "substantial pain" element, suffice it to say that given the age of the victimat the time that the underlying crimes were committed (seven years old), the nature of theforeign object in question (a vibrator that defendant's girlfriend identified andacknowledged belonged to her) and the victim's testimony on this point, we are satisfiedthat the sexual acts perpetrated upon the victim by defendant caused "physical injury"(Penal Law § 130.00 [11]) to the victim in the form of "substantial pain" (PenalLaw § 10.00 [9]). Accordingly, based upon our review of the record as a whole,we find that the verdict is supported by legally sufficient evidence and is in accord withthe weight of the evidence. Defendant's remaining contentions, including his claim ofprosecutorial misconduct and his assertion that County Court erred in denying his motionto set aside the verdict without a hearing, have been examined and found to be lacking inmerit.[*4]
Stein, J.P., McCarthy and Spain, JJ., concur.Ordered that the judgment is affirmed.