| People v Hughes |
| 2014 NY Slip Op 01214 [114 AD3d 1021] |
| February 20, 2014 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vPatrick Hughes, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), forrespondent.
Rose, J. Appeal from a judgment of the Supreme Court (Teresi, J.), rendered June 5,2012 in Albany County, upon a verdict convicting defendant of the crimes of predatorysexual assault against a child, rape in the first degree, rape in the second degree andendangering the welfare of a child (three counts).
When the police located defendant's 16-year-old stepdaughter after she ran awayfrom home, she told them that she had been subjected to physical and sexual abuse by the39-year-old defendant. He then voluntarily spoke with police and, in a video-recordedinterview, gave a written statement in which he admitted that he had "disciplined" thevictim by making her fellate him and have sexual intercourse with him on at least fourseparate occasions. As a result, defendant was charged with predatory sexual assaultagainst a child, rape in the first degree, rape in the second degree and three counts ofendangering the welfare of a child. Following a jury trial, he was convicted as chargedand Supreme Court sentenced him to an aggregate prison term of 50 years to life.Defendant now appeals.
Contrary to defendant's contention, the conviction for predatory sexual assaultagainst a child is based on legally sufficient evidence of the time period when theunderlying crime occurred (see Penal Law § 130.96). As alleged in theindictment and charged to the jury, this count required proof that defendant committedthe underlying crime of rape in the first degree [*2]between June 23, 2006 and September 6, 2006, when thevictim was less than 13 years old (see Penal Law § 130.35 [4]). The victimtestified that the first incident of sexual intercourse occurred in the summer before shestarted sixth grade, which was shown to be during the time period charged and therebyestablished when the sexual intercourse was alleged to have occurred.
We also reject defendant's claim that the jury's verdict was contrary to the weight ofthe evidence. The video recording of his interview with the police makes clear that hewas not coerced and it belies his characterization of his admissions as equivocal andunreliable. While he initially denied the allegations during the interview and thenclaimed that he had had a drinking problem that prevented him from rememberinganything, he soon admitted to oral sexual conduct and sexual intercourse with the victimand described it as a way of disciplining her. Significantly, he provided his interviewerswith telling details concerning occasions and locations that they had not previouslydisclosed to him during the course of the interview. For her part, the victim testifiedunequivocally as to the acts of physical and sexual abuse perpetrated by defendantagainst her, and the issue of her own credibility was fully explored at trial. Defendantalso testified on his own behalf, but the jury rejected his denial that any of the previouslyadmitted conduct had actually occurred and his improbable claim that he had merely toldpolice what they wanted to hear in the confused hope that they would release him andthen vindicate him after further investigation. According great deference to the jury'sopportunity to view the witnesses, hear their testimony and observe their demeanor, wecan find no basis to disturb its verdict as against the weight of the evidence (see People v Sorrell, 108AD3d 787, 789-790 [2013]; People v Hayes, 104 AD3d 1050, 1053 [2013], lvdenied 22 NY3d 1041 [2013]; People vReynolds, 81 AD3d 1166, 1167 [2011], lv denied 16 NY3d 898[2011]).
Nor can we agree with defendant's contention—preserved by means of an oralmotion in limine—that the sole aim of the testimony of a child protective servicescaseworker was to improperly bolster the victim's testimony. The entire extent of thecaseworker's testimony regarding the victim's prior consistent statements was that "[s]hewas reporting that she was sexually abused by [defendant] from the age, I believe, of tentill approximately eighth grade." The main purpose of this testimony was to describe thevictim's fearful reaction to learning that defendant was nearby in the police station and todescribe the reaction of the victim's mother to the caseworker's report to her of herdaughter's allegations. According to the caseworker, the victim's mother, to whom thevictim had previously complained of the abuse to no avail, had discredited anddisregarded the victim's allegations. This testimony was relevant to explain the victim'sapparent delay in disclosing the abuse. Even if we were to consider the caseworker'stestimony to constitute improper bolstering, her repetition of the victim's allegation wasbrief in the overall context of her testimony, the People did not rely on it as directevidence of defendant's guilt and, given the overwhelming nature of the evidence,including defendant's own written statement and the video recording of his interviewwith the police, any error in its admission would be harmless (see People v Grady, 40 AD3d1368, 1373 [2007], lv denied 9 NY3d 923 [2007]; People v Dunn,204 AD2d 919, 921 [1994], lv denied 84 NY2d 907 [1994]).
Defendant's similar argument that two police witnesses also engaged in improperbolstering was not preserved for our review by an appropriate objection at trial. Were weto review it, however, we would find that this testimony was limited to a brief repetitionof the general allegation of sexual abuse made by the victim, without reference to anytime frame or other details. It was given only as background information to explain theactions of the police and was not relied on by the People as direct evidence of defendant'sguilt (see People vGalloway, 93 AD3d 1069, 1072 [2012], lv denied 19 NY3d 996 [2012];People v Terry, 85 [*3]AD3d 1485, 1488 n 3[2011], lv denied 17 NY3d 862 [2011]; see also People v Shepherd, 83 AD3d 1298, 1301 [2011],lv denied 17 NY3d 809 [2011]).
Photographs of text messages sent from defendant's cell phone to the victim wereproperly authenticated and we find no error in their admission. " '[A]uthenticity isestablished by proof that the offered evidence is genuine and that there has been notampering with it,' and '[t]he foundation necessary to establish these elements may differaccording to the nature of the evidence sought to be admitted' " (People v Clevenstine, 68AD3d 1448, 1450 [2009], lv denied 14 NY3d 799 [2010], quotingPeople v McGee, 49 NY2d 48, 59 [1979]). Here, the People produced testimonyfrom a Verizon employee confirming that text messages had been sent between certainphone numbers, the victim identified the phone numbers as belonging to her anddefendant, and she identified the photographs as depicting text messages she receivedfrom him. Defendant's testimony that someone else could have sent the messages fromhis phone presented a factual issue for the jury, and we discern no basis for setting thejury's determination aside (seePeople v Green, 107 AD3d 915, 916-917 [2013]; People v Clevenstine,68 AD3d at 1451).
Nor are we persuaded by defendant's argument that the expert testimony concerninghow children respond to sexual abuse should have been precluded. It is well settled thattestimony to explain the range of behaviors of sexually abusedchildren—including why they may delay in reporting sexual abuse—may beadmitted as beyond the ordinary understanding of the average juror (see People vCarroll, 95 NY2d 375, 387 [2000]). Here, the People's expert testified about thesebehaviors generally in an effort to counter negative inferences urged by defendant'scounsel and did not attempt to impermissibly prove that the victim had been sexuallyabused (see People vSpicola, 16 NY3d 441, 465 [2011], cert denied 565 US—, 132 S Ct 400 [2011]; People v Rich, 78 AD3d 1200, 1202 [2010], lvdenied 17 NY3d 799 [2011]; People v Gregory, 78 AD3d 1246, 1247 [2010], lvdenied 16 NY3d 831 [2011]).
Defendant's challenge to the sixth count of the indictment charging endangering thewelfare of a child as being duplicitous is also without merit. By its nature, the crime ofendangering the welfare of a child "may be committed either by one act or by multipleacts and readily permits characterization as a continuing offense over a period of time"(People v Keindl, 68 NY2d 410, 421 [1986]). The general rule that a count isduplicitous if it charges more than one crime "does not apply to continuing crimes, suchas . . . endangering the welfare of a child" (People v Dalton, 27 AD3d779, 781 [2006], lv denied 7 NY3d 754 [2006]). Here, the count properly setforth allegations that defendant had repeatedly subjected family members, including apet, to physical abuse in the presence of the victim (see People v Chilson, 285AD2d 733, 734 [2001], lv denied 97 NY2d 640 [2001]; People vDunavin, 173 AD2d 1032, 1033 [1991], lv denied 78 NY2d 965 [1991]).
Defendant's remaining arguments were not preserved for our review (seeCPL 470.05 [2]), and their inclusion in his posttrial CPL 330.30 motion is insufficient topreserve them as issues for appeal (see People v Padro, 75 NY2d 820, 821[1990]; People v Richard,30 AD3d 750, 755 [2006], lv denied 7 NY3d 869 [2006]). In any event,were we to address them, we would find them to be without merit. Accordingly, thefailure to raise these objections at trial did not deprive defendant of meaningfulrepresentation (see People vSudler, 75 AD3d 901, 906 [2010], lv denied 15 NY3d 956 [2010]).Rather, the record reveals that trial counsel made appropriate pretrial motions, presentedcogent opening and closing statements, pursued a reasonable defense, vigorouslycross-examined the People's witnesses, presented an expert to rebut the People's expertwitness and raised appropriate objections throughout the trial. Viewing [*4]the totality of the circumstances, we conclude thatdefendant received the effective assistance of counsel (see People v Green, 108 AD3d782, 786 [2013], lv denied 21 NY3d 1074 [2013]; People v Sorrell,108 AD3d at 794; People v Terry, 85 AD3d at 1488-1489).
Finally, we find no merit to defendant's contention that his sentence was harsh andexcessive. Given the relationship between defendant and his young victim, the length oftime over which he sexually abused her, his admission that he did so as a form ofdiscipline, together with his prior criminal history, we cannot say that Supreme Courtabused its sentencing discretion. Nor do we find extraordinary circumstances warrantingmodification in the interest of justice (see People v Jabaut, 111 AD3d 1140, 1148 [2013]; People v Warner, 110 AD3d1339, 1340-1341 [2013]; People v Shultis, 61 AD3d 1116, 1118 [2009], lvdenied 12 NY3d 929 [2009]; People v Greene, 13 AD3d 991, 993-994 [2004], lvdenied 5 NY3d 789 [2005]).
Peters, P.J., McCarthy and Garry, JJ., concur. Ordered that the judgment is affirmed.[Prior Case History: 2012 NY Slip Op 31357(U).]