| People v Duell |
| 2015 NY Slip Op 00014 [124 AD3d 1225] |
| January 2, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vDavid D. Duell, Jr., Appellant. |
Dimartino Law Office, Oswego (Carl L. Schmidt of counsel), fordefendant-appellant.
David D. Duell, Jr., defendant-appellant pro se.
Gregory S. Oakes, District Attorney, Oswego (Amy L. Hallenbeck of counsel), forrespondent.
Appeal from a judgment of the Oswego County Court (Walter W. Hafner, Jr., J.),rendered October 18, 2012. The judgment convicted defendant, upon a jury verdict, ofsexual abuse in the first degree, sexual abuse in the second degree (seven counts),criminal sexual act in the first degree, course of sexual conduct against a child in the firstdegree and endangering the welfare of a child (three counts).
It is hereby ordered that the judgment so appealed from is unanimously modified onthe law by reversing those parts convicting defendant of sexual abuse in the first degreeand sexual abuse in the second degree under the third and ninth counts of the indictmentand dismissing counts two, three and nine of the indictment and as modified thejudgment is affirmed.
Memorandum: On appeal from a judgment convicting him following a jury trial of,inter alia, criminal sexual act in the first degree (Penal Law § 130.50 [4]),course of sexual conduct against a child in the first degree (§ 130.75 [1][b]), sexual abuse in the first degree (§ 130.65 [1]), and seven counts ofsexual abuse in the second degree (§ 130.60 [2]), defendant contends inboth the main brief and in the pro se supplemental brief that the conviction is notsupported by legally sufficient evidence. Although defendant failed to preserve hiscontention for our review inasmuch as he failed to renew his motion for a trial order ofdismissal after presenting evidence (see People v Hines, 97 NY2d 56, 61 [2001],rearg denied 97 NY2d 678 [2001]), we note that preservation is not required withrespect to the sufficiency challenge raised in the main brief. The gravamen of defendant'scontention is that the evidence at trial is legally insufficient to support the convictionbecause it varied from the limited theories of sexual contact alleged in the indictment."Where the charge against a defendant is limited either by a bill of particulars or theindictment itself, the defendant has a 'fundamental and nonwaivable' right to be tried onlyon the crimes charged" (Peoplev Hong Wu, 81 AD3d 849, 849 [2011], lv denied 17 NY3d 796 [2011];see generally People v Grega, 72 NY2d 489, 495-496 [1988]; People v Greaves, 1 AD3d979, 980 [2003]). We have thus held that, where, as here, a defendant contends thathe or she has been convicted upon an uncharged theory of the crime, such a contentiondoes not require preservation (see People v Gunther, 67 AD3d 1477, 1478 [2009]; seealso Greaves, 1 AD3d at 980). In any event, were preservation required, we wouldnevertheless exercise our discretion to address defendant's contention as a matter ofdiscretion in the interest of justice (see CPL 470.15 [6] [a]).
A conviction is supported by legally sufficient evidence "when, viewing the facts in[the] light most favorable to the People, 'there is a valid line of reasoning and permissibleinferences from which a rational jury could have found the elements of the crime provedbeyond a reasonable doubt' " (People v Danielson, 9 NY3d 342, 349 [2007]; seePeople v Bleakley, 69 NY2d 490, 495 [1987]). Here, because the People specificallynarrowed the type of sexual contact alleged in counts two, three and nine of theindictment, County Court was "obliged to hold the prosecution to this narrower theoryalone" (People v Barnes, 50 NY2d 375, 379 n 3 [1980]; see People vSmith, 161 AD2d 1160, 1161 [1990], lv denied 76 NY2d 865 [1990]). Weagree with defendant that the People failed to present evidence concerning the specifictype of sexual contact alleged in those counts of the indictment.
"Where there is a variance between the proof and the indictment, and where theproof is directed exclusively to a new theory rather than the theory charged in theindictment, the proof is deemed insufficient to support the conviction" (Smith,161 AD2d at 1161; see e.g. Gunther, 67 AD3d at 1477-1478; People vJones, 165 AD2d 103, 109-110 [1991], lv denied 77 NY2d 962 [1991]).Counts two and three of the indictment alleged hand-to-vagina contact, but the victimtestified that the only part of defendant's body that came into contact with her vagina wasdefendant's penis. Indeed, when asked specifically if any other part of defendant's bodycame into contact with her vagina during the incident encompassed by counts two andthree, the victim responded, "No." Count nine of the indictment alleged penis-to-vaginacontact, but the victim testified that defendant touched her vagina with his hand duringthat incident. Again, when asked specifically if any other part of defendant's body cameinto contact with her vagina during the incident encompassed by count nine, the victimresponded, "No." We thus conclude that the evidence is legally insufficient to support theconviction with respect to counts two, three and nine and that defendant was denied hisfundamental and nonwaivable right to be tried on only those crimes charged in theindictment. We therefore modify the judgment accordingly.
Viewing the evidence in light of the elements of the remaining crimes as charged tothe jury (see Danielson, 9 NY3d at 349), we further conclude that the verdict onthe remaining counts is not against the weight of the evidence (see generallyBleakley, 69 NY2d at 495).
Defendant contends in his main brief that he was denied a fair trial because certainspectators were mouthing words and otherwise gesturing to the victim while she wastestifying. When the court brought the spectators' conduct to defense counsel's attention,defense counsel asked that those spectators be removed from the courtroom. The courtdenied that request but indicated that, if such conduct continued, the offending spectatorswould be removed. "[T]he decision to exclude a spectator from the courtroom rests in thediscretion of the trial court" (People v Stearns, 72 AD3d 1214, 1218 [2010], lvdenied 15 NY3d 778 [2010]; see generally People v Kin Kan, 78 NY2d 54,57-58 [1991], rearg denied 78 NY2d 1008 [1991]). Ultimately, the question iswhether the spectator's presence could "severely undermine[ ] the truth seeking functionof the court" (People v Ming Li, 91 NY2d 913, 917 [1998]). Defendant contendsthat the only evidence establishing the durational element of the course of sexual conductcount was elicited during the victim's first day of testimony, when the allegedinterference occurred. While defendant's contention is correct, there is nothing to indicatethat any actions by the spectators affected the victim's testimony. Indeed, the victimdenied seeing any of the spectators' conduct, and there is nothing to establish thatdefendant was otherwise prejudiced by that conduct. We thus conclude that the court didnot abuse its discretion in refusing to exclude the spectators from the courtroom.
In his pro se supplemental brief, defendant further contends that the court erred infailing, sua sponte, to order a mistrial as a result of the spectators' conduct and that thecourt improperly delegated its authority to control the courtroom to the prosecutor byallowing the prosecutor to admonish those spectators. We reject those contentions." 'It is well settled that the decision to declare a mistrial rests within the sounddiscretion of the trial court, which is in the best position to determine if this drasticremedy is truly necessary to protect the defendant's right to a fair trial' "(People v Lewis, 247 AD2d 866, 866 [1998], lv denied 93 NY2d 1021[1999]; see generally People v Michael, 48 NY2d 1, 9 [1979]). As noted above,there is nothing in the record to indicate that defendant was prejudiced by the spectators'conduct and, therefore, under these circumstances, we cannot say that the court abused itsdiscretion in refusing, sua sponte, to order a mistrial. We further conclude that the courtdid not improperly delegate its authority to control the courtroom to the prosecutor.Indeed, the court, in recognition of its duties under 22 NYCRR 100.1 and 100.3 (B) (2),sua sponte, raised the issue of spectator interference. At that point, the prosecutor advisedthe court that he would admonish the spectators. In permitting the prosecutor to do so,the court did not improperly delegate a judicial function (see e.g. People vDaughtry, 242 AD2d 731, 732 [1997], lv denied 91 NY2d 871 [1997];People v Gulledge, 187 AD2d 1029, 1029 [1992], lv denied 81 NY2d 886[1993]; cf. People v Bayes, 78 NY2d 546, 551 [1991]).
Although defendant contends that certain questions posed to the child sexual abuseaccommodation syndrome expert were improper, he did not object to that testimony attrial and thus did not preserve his contention for our review (see People v Spicola, 16 NY3d441, 465-466 [2011], cert denied 565 US &mdash, 132 S Ct 400 [2011]; People v Justice, 99 AD3d1213, 1214-1215 [2012], lv denied 20 NY3d 1012 [2013]). In any event, wesee no error in the challenged portion of the testimony (see generally People vKeindl, 68 NY2d 410, 422 [1986], rearg denied 69 NY2d 823 [1987]). Theexpert never opined that defendant committed the crimes; that the victim was, in fact,sexually abused; or that the victim's behavior was consistent with such abuse (seePeople v Carroll, 95 NY2d 375, 387 [2000]; see also Spicola, 16 NY3d at465-466).
Defendant further contends that prosecutorial misconduct on summation deprivedhim of a fair trial. With respect to those instances of prosecutorial misconduct to whichdefendant objected, the court sustained the objections and issued curative instructions tothe jury. Inasmuch as "[d]efendant did not request further curative instructions or movefor a mistrial with respect to those objections[,] . . . the court 'must bedeemed to have corrected the error[s] to the defendant's satisfaction' " (Peoplev White, 291 AD2d 842, 842-843 [2002], lv denied 98 NY2d 656 [2002],quoting People v Williams, 46 NY2d 1070, 1071 [1979]; see People v Robinson, 111AD3d 1358, 1359 [2013], lv denied 22 NY3d 1141 [2014]). Defendantfailed to raise any objection at trial to the remainder of the comments he challenges onappeal and, therefore, defendant's contention insofar as it concerns those comments is notpreserved for our review (seePeople v Ortiz-Castro, 12 AD3d 1071, 1071 [2004], lv denied 4 NY3d766 [2005]). In any event, we conclude that those comments now challenged bydefendant were a fair response to defense counsel's summation (see People v Cotto, 106 AD3d1534, 1534 [2013]; Peoplev Williams, 98 AD3d 1279, 1280 [2012], lv denied 20 NY3d 1066[2013]).
Contrary to defendant's remaining contentions in the main brief and in the pro sesupplemental brief, we conclude that defendant received meaningful representation(see generally People v Baldi, 54 NY2d 137, 147 [1981]), and that the sentence isnot unduly harsh or severe. Present—Scudder, P.J., Fahey, Carni, Lindley andValentino, JJ.