| People v Russell |
| 2014 NY Slip Op 02352 [116 AD3d 1090] |
| April 3, 2014 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v NoelT. Russell, Appellant. |
—[*1] James R. Farrell, District Attorney, Monticello (Robert L. Zangla of counsel), forrespondent.
Garry, J. Appeal from a judgment of the County Court of Sullivan County (McGuire,J.), rendered May 9, 2012, upon a verdict convicting defendant of the crimes of predatorysexual assault (two counts), predatory sexual assault against a child (two counts) andincest in the first degree (two counts).
In March 2011, the victim (born in 1999) told a friend that defendant had beensexually abusing her. The friend told school officials and, after an investigation,defendant was charged with various crimes. Following defendant's second jurytrial,[FN1]he was convicted of predatory sexual assault (two counts), predatory sexual assaultagainst a child (two counts), and incest in the first degree (two counts). County Courtsentenced him to an aggregate prison term of 46 years to life. Defendant appeals.
Defendant first contends that count 7 of the indictment—which chargeddefendant with incest in the first degree committed between September 1, 2010 andMarch 2, 2011—should be dismissed because it is duplicitous and because theperiod of time alleged is too long to provide [*2]defendant with fair notice of the crime charged. The Peopleconcede that the count is duplicitous, but contend that defendant did not preserve hisclaims. While we agree that defendant's contentions are unpreserved as he did not movefor dismissal, we nonetheless exercise our interest of justice jurisdiction. Notably,defendant raised the related issue of notice by moving to preclude the People frompresenting evidence unless more precise dates were provided in support of this count, aswell as counts 5 and 6, which alleged predatory sexual assault and predatory sexualassault against a child, respectively. In response, the People stated that at least one of theacts forming the basis of these three charges occurred between September 1, 2010 andthe end of November 2010, and that multiple acts occurred during the remaining fourmonths; the victim testified that an act of vaginal sexual intercourse occurred in the fallof 2010 following her return to school in September, and at least 10 acts occurredthereafter. The jury was instructed to convict defendant on count 7 if it found that hecommitted rape in the first degree against the victim between September 1, 2010 andMarch 2, 2011.
"Each count of an indictment may charge one offense only" (CPL 200.30 [1]). Acount that charges a single criminal act is duplicitous if the evidence reveals that multipleacts occurred during the time period in question (see People v Keindl, 68 NY2d410, 416-417 [1986]; People vBlack, 65 AD3d 811, 813 [2009], lv denied 13 NY3d 905 [2009]).While this rule necessarily does not apply to a crime based on a continuing course ofconduct—such as the predatory sexual assault charges againstdefendant—"[m]ultiple rapes of the same victim are not a continuing offense.Each act of intercourse is a separate and distinct offense" (People v Dalton, 27 AD3d779, 781 [2006], lv denied 7 NY3d 754 [2006], lv denied uponreconsideration 7 NY3d 811 [2006] [internal quotation marks, brackets and citationsomitted]). The challenged count violated these rules. Accordingly, we dismiss count 7 onthe ground that it is duplicitous (see People v Pryce, 41 AD3d 983, 984 [2007], lvdenied 9 NY3d 880 [2007]; People v Dunton, 30 AD3d 828, 829 [2006], lvdenied 7 NY3d 847 [2006]; compare People v Hayes, 104 AD3d 1050, 1052-1053[2013], lv denied 22 NY3d 1041 [2013]; People v Tomlinson, 53 AD3d 798, 799 [2008], lvdenied 11 NY3d 835 [2008]).[FN2]
Defendant next contends that the verdict was against the weight of the evidencebecause the victim's uncorroborated testimony was unworthy of belief. There were noeyewitnesses, the People presented no physical evidence, and defendant did not testify;thus, the credibility of the victim was critical to the jury's determination. She described anoccasion in July 2010 when defendant approached her from behind in the bathroom andanally raped her, followed by another incident sometime after her return to school inSeptember 2010 when he vaginally raped her in his bedroom. She testified that when shetold defendant to stop, he warned her to "shut up or I'll take you away forever." Thevictim stated that defendant sexually abused her on more than 10 subsequent occasions,that she did not tell anyone about these events at first because defendant[*3]"always promised" that he would stop when she was 12 or13 years old, and that she eventually told a friend what was happening because shewished to protect her younger sister and was "tired of having [the abuse] happen."
On cross-examination, defense counsel challenged the victim's credibility by, amongother things, eliciting her admission that she had "held [herself] out on a social networksite as being an amazing liar or good liar."[FN3]He further obtained the victim's admission that she had testified during her directexamination that she had not gotten into trouble at her current school when, in truth, shehad been suspended on one occasion; when confronted, the victim initially testified thatshe had forgotten the suspension, but then acknowledged that she had testified falsely.Defendant further points to the lack of detail in the victim's account of events, and to aninconsistency between her testimony and the testimony of her pediatrician as to herexperience of pain from the abuse. However, " 'it is not uncommon for young children tobe uncertain and even inconsistent in their trial testimony' " (People v Stewart, 20 AD3d769, 770 [2005], quoting People v Raymo, 19 AD3d 727, 728 [2005], lvdenied 5 NY3d 793 [2005]). Contrary to defendant's contention, we do not find thatthese discrepancies rendered the victim's testimony inherently unbelievable or incredibleas a matter of law (see People vTexidor, 71 AD3d 1190, 1193 [2010], lv denied 14 NY3d 893 [2010];People v Wallis, 24 AD3d1029, 1031 [2005], lv denied 6 NY3d 854 [2006]). We further note thatmost of the inconsistencies were unrelated to the crimes for which defendant wasconvicted (see People vDin, 110 AD3d 1246, 1247 [2013]). There was no showing that the victim had areputation for untruthfulness or that she had ever lied on important matters ormanipulated the truth for the purpose of harming someone (compare People v Fernandez,106 AD3d 1281, 1284-1285 [2013]; People v O'Neil, 66 AD3d 1131, 1134 [2009]). Mostsignificantly, the issues now raised by defendant were fully revealed and explored duringthe victim's cross-examination. According great deference to the jury's opportunity toview the victim's demeanor and assess her credibility in light of these concerns, we donot find that the verdict was against the weight of the evidence (see People vFernandez, 106 AD3d at 1285-1286; People v Beauharnois, 64 AD3d 996, 999 [2009], lvdenied 13 NY3d 834 [2009]; People v Allen, 13 AD3d 892, 893-894 [2004], lvdenied 4 NY3d 883 [2005]).
However, we reverse and remit for a new trial due to County Court's errors inrepeatedly denying defendant's challenges for cause to jurors who made statements thatcalled their impartiality into question. It is well established that "a prospective jurorwhose statements raise a serious doubt regarding the ability to be impartial must beexcused unless the juror states unequivocally on the record that he or she can be fair andimpartial" (People v Chambers, 97 NY2d 417, 419 [2002]; accord People v Harris, 19NY3d 679, 685 [2012]; see People v Arnold, 96 NY2d 358, 363 [2001]).When a juror's impartiality is in doubt, it is the court's obligation to make furtherinquiries and to excuse the juror if the doubt is not fully dispelled (see People v McLean, 24AD3d 1110, 1111 n [2005]). In this respect, the court should err on the side ofdisqualification, as "the worst [it] will have done in most cases is to have replaced oneimpartial juror with another impartial juror" (People v Johnson, 94 NY2d 600,616 [2000] [internal quotation marks and citation omitted]; see CPL 270.20 [1][b]; [2]; People v Izzo, 104AD3d 964, 966 [2013], lv denied 21 NY3d 1005 [2013]). Conversely, thedenial of a challenge for [*4]cause to a biased juror callsfundamental fairness into question and "casts a doubt on the legitimacy of the verdicteven before the trial begins" (People v Culhane, 33 NY2d 90, 108 n 3 [1973];see People v Burdo, 256 AD2d 737, 741-742 [1998]).
Here, one juror stated that his job experience as a correction officer "might" affecthis ability to be impartial; when asked whether his employment would prevent him fromapplying "basic principles" granting certain rights to defendant, he responded, "It may."A second juror said that her husband's employment in law enforcement "could" cause herto give greater weight to a police officer's testimony, and a third juror said that he couldnot "guarantee" that he would follow an instruction not to grant greater weight to suchtestimony. A fourth juror stated that her husband's work as a sheriff's deputy would"[p]ossibly" cause her to hesitate in providing defendant his constitutional protections;she further confirmed that she would be reluctant to apply the presumption of innocence.A fifth juror said that she believed that children who accused parents of sexual abusecould not lie, and a sixth juror agreed with other jurors that it was "highly unlikely" that achild would lie about this subject, and that it was probable that such a charge must betrue because of its seriousness. Finally, a seventh juror expressed doubt when askedwhether she would draw an adverse inference from a defendant's choice not to testify,explaining that "it brings the question up why wouldn't you[?]" Although she stated thatshe would follow the judge's instructions in this regard, she added that she could not"control myself to take something that's already in my mind away." The prosecutoradvised County Court that at least one of these jurors required rehabilitation because ofsuch expressions of uncertainty, stating that "there should be inquiry from the court."Nevertheless, the jurors were not questioned further, and none made "unequivocalassertion[s] of impartiality" (People v Chambers, 97 NY2d at 419). As defendantexhausted his peremptory challenges after using them on these jurors, each of the court'serrors in denying his challenges for cause requires the reversal of his convictions(see CPL 270.20 [2]; People v McGuire, 101 AD3d 1386, 1388-1389 [2012];People v McLean, 24 AD3d at 1111; People v Heath, 24 AD3d 876, 877 [2005], lvdenied 6 NY3d 813 [2006]).
Defendant's remaining contentions are rendered academic by this determination.
Lahtinen, J.P., Stein and McCarthy, JJ., concur. Ordered that the judgment isreversed, on the law and as a matter of discretion in the interest of justice, count 7 of theindictment dismissed, and matter remitted to the County Court of Sullivan County for anew trial on counts 2, 3, 4, 5 and 6 of the indictment.
Footnote 1: Defendant's first trialresulted in a deadlocked jury. During that trial, count 1 of the indictment was dismissed.
Footnote 2: We need not resolvedefendant's related claim that the six-month time period alleged was unreasonably long(see e.g. People vClevenstine, 68 AD3d 1448, 1449 [2009], lv denied 14 NY3d 799[2010]), but note that the issues of duplicity and notice are interrelated, as one of thepurposes of the prohibition against duplicity is to provide the defendant with fair noticeof the particular charge against him or her "so as to enable him [or her] to answer to thecharges and to prepare an adequate defense" (People v Keindl, 68 NY2d at416-417; see People v Beauchamp, 74 NY2d 639, 640-641 [1989]).
Footnote 3: Although not clarifiedin the record, it appears from the parties' arguments that this representation was related tothe results of a quiz or questionnaire that the victim posted on her Facebook page.