| People v Baker |
| 2014 NY Slip Op 09068 [123 AD3d 1378] |
| December 31, 2014 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vRobin Baker, Appellant. |
Martin J. McGuinness, Saratoga Springs, for appellant.
Mary E. Rain, District Attorney, Canton (Patricia C. Campbell, Syracuse, ofcounsel), for respondent.
Garry, J. Appeal from a judgment of the County Court of Franklin County (Hall Jr.,J.), rendered December 7, 2012, upon a verdict convicting defendant of the crimes ofcriminal sexual act in the first degree and sexual abuse in the first degree.
Defendant was indicted on various charges arising out of several incidents betweenJanuary and October 2004 in which she allegedly sexually abused two young victims.Some of the charges were dismissed before trial, and defendant was ultimately tried by ajury on one count each of criminal sexual act in the first degree and course of sexualconduct against a child in the first degree. During the trial, defendant moved to dismissthe charge of course of sexual conduct against a child on the ground that the evidencewas legally insufficient, and County Court responded by amending that count of theindictment to charge sexual abuse in the first degree. The jury convicted defendant on theamended charge and the criminal sexual act in the first degree charge, and she wassentenced to an aggregate prison term of 12 years followed by 10 years of postreleasesupervision. Defendant appeals.
Defendant first contends that count 3 of the indictment, charging her with criminalsexual act in the first degree, was rendered duplicitous by the victim's testimony.Although the claim is unpreserved, we feel compelled to exercise our interest of justicejurisdiction (see People vDunton, 30 AD3d 828, 829 [2006], lv denied 7 NY3d 847 [2006]). Theprohibition against duplicitousness is violated when trial or grand jury testimonydescribes multiple acts that cannot [*2]be directly relatedto particular counts in a facially valid indictment (see People v Black, 65 AD3d 811, 814 [2009], lvdenied 13 NY3d 905 [2009]; People v Dalton, 27 AD3d 779, 781 [2006], lvdenied 7 NY3d 754 [2006]). As pertinent here, the crime of criminal sexual act in thefirst degree requires proof that the defendant engaged in oral sexual conduct with anotherperson who is less than 11 years old, and oral sexual conduct includes "contact between. . . the mouth and the vulva or vagina" (Penal Law § 130.00[2] [a]; see Penal Law § 130.50 [3]). The challenged count chargeddefendant with this crime based upon the victim's grand jury testimony that defendanthad caused the victim to use her mouth to make contact with defendant's vaginal area ona single occasion in 2004. At trial, however, the victim testified that defendant caused herto engage in this conduct multiple times during the pertinent time period, and that she didnot remember any specific time when it had happened. Confronted with this discrepancyduring cross-examination, the victim explained that she had been nervous during hertestimony on both occasions. It is wholly understandable that a young victim describingsuch traumatic events will be nervous. Unfortunately, the resulting testimony regardingmultiple acts made it impossible to ascertain the particular act upon which the juryverdict was based. We are therefore required, despite the utterly heinous nature of theacts the victim described, to reverse defendant's conviction on this charge; further, thechallenged count must be dismissed (see People v Raymo, 19 AD3d 727, 729 [2005], lvdenied 5 NY3d 793 [2005]).
Defendant next contends that County Court should not have amended count 6 of theindictment alleging course of sexual conduct against a child in the first degree to chargesexual abuse in the first degree. While the People may seek to amend an indictment atany time during trial to correct "matters of form, time, place, names of persons and thelike," such an amendment may not alter the theory of prosecution reflected in theevidence before the grand jury (CPL 200.70 [1]; see CPL 200.70 [2]; People v Rowe, 105 AD3d1088, 1089 [2013], lv denied 21 NY3d 1019 [2013]). Further, a court maysubmit to a jury a lesser included offense of a crime charged in an indictment providedthat the elements of the two crimes are such that "it is impossible to commit the greatercrime without concomitantly committing the lesser offense by the same conduct [and]there [is] a reasonable view of the evidence to support a finding that the defendantcommitted the lesser offense but not the greater" (People v Hernandez, 42 AD3d 657, 658 [2007] [internalquotation marks and citation omitted]).
As charged in the indictment, the crime of course of sexual conduct against a child inthe first degree is committed when, over a period of at least three months, a defendant"engages in two or more acts of sexual conduct, which include[ ] at least one act ofsexual intercourse, oral sexual conduct, anal sexual conduct or aggravated sexual contact,with a child less than [11] years old" (Penal Law § 130.75 [1] [a]). Sexualconduct consists of "sexual intercourse, oral sexual conduct, anal sexual conduct,aggravated sexual contact, or sexual contact" (Penal Law § 130.00 [10]).Here, defense counsel moved during the trial to dismiss the charge on the ground that thePeople's evidence was legally insufficient to prove that two or more acts of sexualconduct had occurred. The People conceded that dismissal of the original charge wasrequired on this ground, and County Court stated that the count was dismissed. However,the People later moved to amend count 6 of the indictment to charge sexual abuse in thefirst degree, which, as pertinent here, requires a showing that a defendant subjected achild less than 11 years old to sexual contact (see Penal Law§ 130.65 [3]). County Court granted the motion after concluding that thesexual abuse charge was a lesser included offense of the original charge. Although therewas a reasonable view of the evidence to support a finding that defendant committedsexual abuse in the first degree by subjecting a child less than 11 years old to a single actof sexual contact, we agree with defendant that the amendment was error, as this crime isnot a lesser included offense of the charged crime of course of sexual conduct against achild in the first degree.
[*3] A crime is alesser included offense of a charge of a higher degree only when in all circumstances, notonly in those presented in the particular case, it is impossible to commit the greater crimewithout concomitantly, by the very same conduct, committing the lesser offense (seePeople v Wheeler, 67 NY2d 960, 962 [1986]; see also CPL 1.20 [37]). It ispossible for a defendant to engage in an act of sexual conduct within the scope of thecrime of course of sexual conduct against a child through an act of sexual contact,defined in pertinent part as "any touching of the sexual or other intimate parts of a personfor the purpose of gratifying sexual desire of either party" (Penal Law§ 130.00 [3]). However, a defendant could also commit an act of sexualconduct within the scope of the originally-charged offense by an act of "sexualintercourse, oral sexual conduct, anal sexual conduct, [or] aggravated sexual contact"(Penal Law § 130.00 [10]). The definitions of these acts do not include anyelement of intent; thus, it is possible for a defendant to commit an act that constitutessexual conduct without the purpose of gratifying anyone's sexual desire that is a requiredelement of sexual contact (see Penal Law § 130.00 [1], [2] [a], [b];[11]; People v Wheeler, 67 NY2d at 962; see also People v Porter, 82 AD3d 1412, 1412-1413[2011], lv denied 16 NY3d 898 [2011]). Therefore, as it is possible to commitcourse of sexual conduct against a child in the first degree without also committingsexual abuse in the first degree by the same conduct, defendant's conviction on thatcharge must be reversed, and the amended indictment count must be dismissed (seePeople v Wheeler, 67 NY2d at 962; People v Moyer, 27 NY2d 252, 253-254[1970]; compare People vBeauharnois, 64 AD3d 996, 1000-1001 [2009], lv denied 13 NY3d 834[2009]).
Defendant's remaining contentions are rendered academic by this determination.
McCarthy, J.P., Lynch and Clark, JJ., concur. Ordered that the judgment is reversed,on the law and as a matter of discretion in the interest of justice, counts 3 and 6 of theindictment dismissed, with leave to the People to re-present any appropriate charges to anew grand jury.