| People v Milford |
| 2014 NY Slip Op 04278 [118 AD3d 1166] |
| June 12, 2014 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Scott J. Milford, Appellant. |
Kindlon, Shanks & Associates, Albany (Terence L. Kindlon of counsel), forappellant.
John M. Muehl, District Attorney, Cooperstown (Michael F. Getman of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the County Court of Otsego County(Lambert, J.), rendered April 3, 2012, upon a verdict convicting defendant of the crimeof sexual abuse in the first degree (two counts).
Defendant was indicted and charged with three counts of sexual abuse in the firstdegree based upon allegations that he engaged in inappropriate touching with victim A(born in November 2001) on or about October 2, 2010 and engaged in similar conductwith respect to victim B (born in October 1999) on September 5, 2010 and October 18,2010. Victim A spontaneously disclosed the inappropriate touching to her mother on themorning following the October 2010 incident; victim B revealed the subject incidents inresponse to questioning by her mother, which, in turn, was prompted by the mother'sdiscovery of the allegations made against defendant regarding victim A. As a result ofthe manner in which victim B's disclosure came to light, defendant included—aspart of his pretrial omnibus motion—a request for a "taint" hearing to determinewhether victim B's testimony had been contaminated by her mother's questioning.Defendant also moved, insofar as is relevant here, to sever the counts of the indictmentpursuant to CPL 200.20 (3). County Court denied both of these applications.
Following a jury trial, at which victims A and B, among others, appeared andtestified, the jury found defendant guilty of two counts of sexual abuse in the firstdegree—pertaining to the October 2010 incident regarding victim A and theSeptember 2010 incident regarding victim [*2]B—and not guilty of the remaining count. Defendantthereafter was sentenced upon each count to a prison term of seven years followed byfive years of postrelease supervision—said sentences to run consecutively. Thisappeal by defendant ensued.
We affirm. Initially, we reject defendant's assertion that County Court abused itsdiscretion in denying his motion to sever the counts of the indictment. Although chargesarising out of different criminal transactions are properly joinable where, as here, "suchoffenses are defined by the same or similar statutory provisions and consequently are thesame or similar in law" (CPL 200.20 [2] [c]; see People v Raucci, 109 AD3d 109, 117 [2013], lvdenied 22 NY3d 1158 [2014]; People v Rogers, 94 AD3d 1246, 1248 [2012], lvdenied 19 NY3d 977 [2012]; People v Hunt, 39 AD3d 961, 962 [2007], lv denied9 NY3d 845 [2007]; People v Reome, 309 AD2d 1067, 1068 [2003], lvdenied 2 NY3d 805 [2004]), a court nonetheless may—"in the interest ofjustice and for good cause shown"—exercise its discretion and order that suchoffenses be tried separately (CPL 200.20 [3]; see People v Pirillo, 78 AD3d 1424, 1425 [2010];People v Reome, 309 AD2d at 1068). Good cause, in turn, may be established bydemonstrating, among other things, that there is "[s]ubstantially more proof on one ormore such joinable offenses than on others and there is a substantial likelihood that thejury would be unable to consider separately the proof as it relates to each offense" (CPL200.20 [3] [a]; accord People v Reome, 309 AD2d at 1068; see People vCox, 298 AD2d 461, 461 [2002], lv denied 99 NY2d 581 [2003]). Simplyput, defendant failed to make such a showing here.
As a starting point, defendant's motion merely asserted—in an entirelyconclusory fashion—that "there [might] be substantially more proof with respectto one complainant than the other." This unsubstantiated assertion was belied by thesubsequent proof at trial, where the quantum of evidence adduced as to each victimproved to be substantially similar. More to the point, the evidence as to each victim was"separately presented, uncomplicated and easily distinguishable" (People v Lakatosz, 59 AD3d813, 815 [2009], lv denied 12 NY3d 917 [2009] [internal quotation marksand citation omitted]; accordPeople v Nickel, 14 AD3d 869, 870 [2005], lv denied 4 NY3d 834[2005]), and the fact that the jury acquitted defendant of one of the counts of theindictment while convicting him of the remaining counts demonstrated the jury's abilityto separately consider and evaluate the proof as to each of the victims/incidents (seePeople v Hunt, 39 AD3d at 962; People v Davis, 19 AD3d 1007, 1007 [2005]; People vNickel, 14 AD3d at 870; People v Reome, 309 AD2d at 1068; People vBoyea, 222 AD2d 937, 939 [1995], lv denied 88 NY2d 934 [1996]). Underthese circumstances, County Court did not abuse its discretion in denying defendant'smotion to sever.
We reach a similar conclusion with respect to the requested taint hearing.Notwithstanding the absence of "express statutory authority for a hearing to determinewhether the testimony of [a] child witness[ ] has been tainted by suggestive interviewingtechniques," a court nonetheless may—"[u]pon a proper showing" by thedefendant—direct that a pretrial taint hearing be held (People v Nickel, 14AD3d at 870-871). Noticeably absent from defendant's motion papers was any indicationthat victim B's mother engaged in leading or otherwise suggestive questioning of victimB regarding any inappropriate contact that she may have had with defendant. Moreover,"any suggestibility, the manner of questioning and its effects on [victim B's] testimonycould be, and was, addressed on cross-examination of [victim B and her mother]" at trial(id. at 871; see People vWeber, 25 AD3d 919, 923 [2006], lv denied 6 NY3d 839 [2006]).Accordingly, County Court did not abuse its discretion in denying defendant's request fora pretrial taint hearing (seePeople v Pulvino, 115 AD3d 1220, 1222 [2014]; People v Thompson, 59 AD3d1115, 1116 [2009], lv denied 12 NY3d 860 [2009]; People v Kemp,[*3]251 AD2d 1072, 1072-1073 [1998], lvdenied 92 NY2d 900 [1998]; cf. People v Montalvo, 34 AD3d 600, 601 [2006], lvdenied 8 NY3d 883 [2007]).
Defendant's assertion that the convictions are against the weight of the evidence isequally unpersuasive. Insofar as is relevant here, a person is guilty of sexual abuse in thefirst degree "when he or she subjects another person to sexual contact . . .[w]hen the other person is less than [11] years old" (Penal Law § 130.65[3]). Sexual contact, in turn, is defined as "any touching of the sexual or other intimateparts of a person for the purpose of gratifying sexual desire of either party," which"includes . . . the touching of the victim by the actor, whether directly orthrough clothing" (Penal Law § 130.00 [3]). In this regard, "the case lawmakes clear that [a]n inference of sexual gratification may be drawn from the conduct ofa defendant who has intimate contact with a child to whom he or she is not related" (People v Brown, 114 AD3d1017, 1018 [2014] [internal quotation marks and citation omitted]).
The record established that, in October 2010, victim A resided with her mother, hermother's now ex-boyfriend and the ex-boyfriend's two sons. On the night in question,defendant attended a birthday party for the ex-boyfriend at victim A's residence and wasobserved watching television with all four children in the bedroom occupied by victim Aand her sister. At the end of the evening, victim A and her sister went to sleep in theirshared bedroom, while defendant and another male family friend, both of whomapparently were too intoxicated to drive to their respective homes, spent the night in theliving room of the residence. Victim A testified that, at some point during the night, sheawoke to find defendant kneeling next to her bed and touching her between her legs.Although victim A testified that she hid beneath the bed covers because she was scared,she also identified defendant as the perpetrator, described his clothing and detailed bothhis attempts "to put his hands in [her] pants" and her efforts to resist him. The followingmorning, victim A, who described the incident as "the most scariest thing that everhappened," revealed to her mother that defendant had touched her "where boys shouldn'ttouch girls." Victim A's mother immediately contacted her ex-boyfriend, who wasundergoing work-related training with defendant at the time. When the ex-boyfriendconfronted defendant regarding victim A's allegations, defendant replied only that he hadbeen intoxicated the previous evening and did not remember anything after he "passedout" on the floor of the living room.
Although defendant deems victim A to be "very credible," he contends that heraccount of the abuse is suspect because she "did not have much opportunity to view theperson who [touched her], as she was hiding under the covers at the time in a darkenedroom after having been awakened" and, further, suggests that she might have confuseddefendant with the other male overnight guest present in the residence. The recordreflects, however, that victim A was well acquainted with the other overnight guest and,more to the point, victim A testified that "[the] lamp by [her] sister's bed" remainsilluminated at night because her sister is afraid of the dark. In light of the foregoingtestimony, and granting due deference to the jury's ability to observe the witnesses'demeanor and assess their credibility, we do not find that the jury failed to accord theevidence the weight it deserved. Accordingly, we discern no basis upon which to disturbdefendant's conviction as to victim A.
We reach a similar conclusion with respect to victim B. Victim B testified that shehad known defendant for eight or nine years, as he was friends with her stepfather. On anevening in September 2010, victim B and her sister were playing in the yard at theirresidence when defendant stopped by to see victim B's mother and stepfather, who wereout for the evening. After speaking with victim B's great-grandmother, who wasbaby-sitting victim B and her sister, [*4]defendant visitedwith the children, pushing victim B's sister on a swing in the yard. At some point, victimB entered a tent that had been set up in the yard to retrieve something for her sister,whereupon she heard defendant ask her sister to bring him a beer. When victim B's sisterwent into the house to retrieve the beverage, defendant entered the tent, told victim B tolie down and put his hand down victim B's pants. Victim B testified that she tolddefendant to "stop" but "he wouldn't stop." After warning victim B not to tell anyone,defendant drank his beer and left the premises. Victim B testified that she did not tellanyone about this incident until questioned by her mother approximately six weeks later"[b]ecause [she] thought that [she had done] something wrong." Defendant admitted thathe was at victim B's residence on the night in question, but he denied entering the tent ortouching victim B in any fashion. Although defendant views victim's B testimony ashighly suspect given that her disclosure was not spontaneous and she had a documentedhistory of lying about what her mother characterized as "kid stuff," these issues werefully vetted at trial and extensively explored on cross-examination. Again, grantingappropriate deference to the jury's credibility determinations, "we cannot conclude thatthe jury erred in crediting [victim B's] testimony over that of defendant or failed to givethe evidence the weight it should be accorded" (People v Allen, 13 AD3d 892, 894 [2004], lvdenied 4 NY3d 883 [2005]).
As a final matter, we reject defendant's claim that he was deprived of a fair trial dueto prosecutorial misconduct. To the extent that defendant's specific arguments on thispoint have been preserved for our review, "the record as a whole fails to disclose that theprosecutor engaged in a flagrant and pervasive pattern of prosecutorial misconduct so asto deprive [defendant] of a fair trial" (People v Green, 119 AD3d 23, 30 [2014] [internal quotation marks and citationsomitted]; see People vKindred, 100 AD3d 1038, 1040 [2012], lv denied 21 NY3d 913 [2013];People v Perry, 95 AD3d1444, 1446 [2012], lv denied 19 NY3d 1000 [2012])—particularlygiven that, where appropriate objections were made by defense counsel, County Courtresponded with prompt curative instructions. Defendant's remaining contentions,including his assertion that the sentence imposed was harsh and excessive, have beenexamined and found to be lacking in merit.
Lahtinen, J.P., McCarthy, Rose and Lynch, JJ., concur. Ordered that the judgment isaffirmed.