| People v Santiago |
| 2014 NY Slip Op 04277 [118 AD3d 1163] |
| June 12, 2014 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Michael A. Santiago, Appellant. |
Smith Hernandez, LLC, Troy (Trey Smith of counsel), for appellant.
James A. Murphy III, District Attorney, Ballston Spa (Nicholas E. Tishler ofcounsel), for respondent.
Rose, J. Appeal from a judgment of the County Court of Saratoga County (Scarano,J.), rendered December 20, 2012, upon a verdict convicting defendant of the crime ofcourse of sexual conduct against a child in the second degree (two counts).
Based on allegations by two victims (half sisters born in 1994 and 1995) thatdefendant had subjected them to sexual contact on multiple occasions, he was chargedwith, among other things, two counts of the crime of course of sexual conduct against achild in the second degree. The amended indictment's first renumbered count alleged thatdefendant's conduct against victim A occurred between 2001 and 2006, and the secondcount alleged that the conduct against victim B occurred between 2001 and 2008.Defendant was also charged with sexual abuse in the third degree and endangering thewelfare of a child based on a 2011 incident regarding victim B. Following a jury trial,defendant was convicted of only the two counts of course of sexual conduct against achild in the second degree, and County Court sentenced him to consecutive four-yearprison terms, with 10 years of postrelease supervision. He now appeals.
Defendant challenges the legal sufficiency of the evidence supporting the convictionwith respect to the count alleging a course of sexual conduct against victim A. Thisargument, however, is unpreserved for our review because, even though defendant madea specific motion to dismiss this count at the close of the People's proof, he failed torenew the motion after the [*2]close of all the evidence(see People v Lane, 7 NY3d888, 889 [2006]; People vDancy, 87 AD3d 759, 760 [2011]). Nevertheless, we will necessarily reviewwhether the elements of the crime were adequately established at trial as part of ourweight of the evidence review (see People v McRobbie, 97 AD3d 970, 971 [2012], lvdenied 20 NY3d 934 [2012]; People v Tucker, 95 AD3d 1437, 1438 [2012], lvdenied 19 NY3d 1105 [2012]). Where, as here, a different verdict would not beunreasonable, we will, "like the trier of fact below, weigh the relative probative force ofconflicting testimony and the relative strength of conflicting inferences that may bedrawn from the testimony" (People v Romero, 7 NY3d 633, 643 [2006] [internalquotation marks and citations omitted]; accord People v Stewart, 60 AD3d 1111, 1113 [2009],lv denied 12 NY3d 860 [2009]). In doing so, we accord great deference to thejury's ability to view the witnesses and determine their credibility (see People vRomero, 7 NY3d at 644; People v Bleakley, 69 NY2d 490, 495 [1987]; People v Allen, 13 AD3d892, 894 [2004], lv denied 4 NY3d 883 [2005]).
In order to convict defendant of the crimes of course of sexual conduct against achild in the second degree, the People were required to establish that, over a period of notless than three months, when defendant was more than 18 years old, he engaged in twoor more acts of sexual conduct with a child less than 13 years old (see Penal Law§ 130.80 [1] [b]). As relevant here, "sexual conduct" includes "any touchingof the sexual or other intimate parts of a person for the purpose of gratifying sexualdesire" (Penal Law § 130.00 [3], [10]). Defendant contends that there isinsufficient evidence to establish the timing of the course of conduct against victim Aand that the testimony of the victims and their mother was too inconsistent andimprobable to support the jury's finding. The victims' mother testified that, starting in1999, she often left the victims with defendant and his wife to babysit while she worked,that she and her family temporarily resided with defendant and his family at times, andthat the victims would stay with defendant and his family overnight on weekends two orthree times a month. Victim A confirmed that she and her siblings would spend nightsand weekends at defendant's residence, she described multiple instances of defendanttouching her buttocks and vagina, and she testified that she once witnessed defendant dothe same thing to victim B. Victim A also testified that there were multiple occasionswhile she was in elementary school, on mornings when defendant's wife was at work andthe other children in the residence were asleep, when defendant would lay her on herback on top of him and push her up and down against his penis. Victim B also testifiedthat she spent many weekends at defendant's residence and described similar episodes ofsexual conduct by defendant starting in 2000. Further, victim B testified that defendantmade her touch his penis with her hand on numerous occasions while she was inelementary school.
Defendant denied that any of the conduct took place and, although he and his wifeclaimed that the victims rarely spent time at their residence, they both acknowledged thatthere were times that defendant would have been the only adult home when the victimsand their siblings were present at the residence with defendant's children. Moreover,although there was no physical evidence of the abuse, the victims provided consistentdetails regarding the nature, frequency and locations of the sexual conduct, and bothdenied that they had ever spoken to each other about it. The alleged inconsistencies intheir descriptions of when the respective families lived at various residences were fullyexplored at trial and, given the evidence that the families were close and spent a greatdeal of time together, the jury was free to reject the claim by defendant's wife that thevictims and their siblings rarely spent any time at their residences, did not stay overnightand did not visit at all between 2002 and 2007. Under these circumstances, we find nobasis to conclude that the jury's determination to credit the victims' accounts is againstthe weight of the evidence (seePeople v Olson, 110 AD3d 1373, 1374-1375 [2013]; People v [*3]Weber, 25 AD3d 919, 921 [2006], lvdenied 6 NY3d 839 [2006]; People v Harp, 20 AD3d 672, 673 [2005], lv denied5 NY3d 852 [2005]).
Defendant's claims that the prosecutor improperly cross-examined his wife about herfailure to volunteer exculpatory information at an earlier date, improperlycross-examined him regarding his right to remain silent and improperly commented onthese issues during summation are unpreserved given his failure to object at trial (seePeople v Miller, 89 NY2d 1077, 1079 [1997]; People v Dawson, 50 NY2d311, 316 [1980]; People vWilliams, 40 AD3d 1364, 1366 [2007], lv denied 9 NY3d 927 [2007]).In any event, were we to consider these arguments, we would find no error inasmuch asdefendant's wife testified that she did provide the relevant information to the policeinvestigator, the prosecutor's questioning of defendant regarding whether he gave awritten statement was an appropriate follow-up to his direct testimony and the prosecutormade fair comments on the evidence during summation (see People v Williamson, 77AD3d 1183, 1185 [2010]; People v Holmes, 9 AD3d 689, 691-692 [2004], lvdenied 3 NY3d 675 [2004]; People v Otero, 225 AD2d 489, 490 [1996],lv denied 88 NY2d 968 [1996]; People v Thomas, 174 AD2d 447, 448[1991], lv denied 78 NY2d 975 [1991]). Moreover, the questioning regardingwhether defendant was willing to give a written statement, as he claimed in his directtestimony, addressed only the manner, i.e., orally, by which he agreed to give a statementand, thus, did not implicate his right to remain silent (see People v Sprague, 267AD2d 875, 879 [1999], lv denied 94 NY2d 925 [2000]).
Finally, defendant has not identified any extraordinary circumstances and weperceive no abuse of discretion warranting a reduction of his sentence (see People v Jaeger, 96 AD3d1172, 1175 [2012], lv denied 19 NY3d 997 [2012]; People vStewart, 60 AD3d at 1113; People v Frary, 29 AD3d 1223, 1226 [2006], lvdenied 7 NY3d 788 [2006]).
Stein, J.P., McCarthy and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed.