| People v Scheidelman |
| 2015 NY Slip Op 01111 [125 AD3d 1426] |
| February 6, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Mark Scheidelman, Appellant. |
Frank Policelli, Utica, for defendant-appellant.
Scott D. McNamara, District Attorney, Utica (Steven G. Cox of counsel), forrespondent.
Appeal from a judgment of the Oneida County Court (Michael L. Dwyer, J.),rendered July 17, 2013. The judgment convicted defendant, upon a jury verdict, of sexualabuse in the first degree.
It is hereby ordered that the judgment so appealed from is reversed as a matter ofdiscretion in the interest of justice and on the law, and a new trial is granted.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of sexual abuse in the first degree (Penal Law § 130.65 [3]). Wereject defendant's contention that the verdict is contrary to the weight of the evidencebecause the People's witnesses were not credible. Contrary to defendant's contention, thetestimony of those witnesses was not "so inconsistent or unbelievable as to render itincredible as a matter of law" (People v Black, 38 AD3d 1283, 1285 [2007], lv denied8 NY3d 982 [2007]). We note that "[r]esolution of issues of credibility, as well as theweight to be accorded to the evidence presented, are primarily questions to be determinedby the jury" (People vWitherspoon, 66 AD3d 1456, 1457 [2009], lv denied 13 NY3d 942[2010] [internal quotation marks omitted]), and we see no basis for disturbing the jury'scredibility determinations in this case. Viewing the evidence in light of the elements ofthe crime as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), weconclude that the verdict is not against the weight of the evidence (see generallyPeople v Bleakley, 69 NY2d 490, 495 [1987]).
Defendant further contends that he was deprived of a fair trial by the cumulativeeffect of numerous instances of prosecutorial misconduct, including elicitinginadmissible evidence, conducting an improper cross-examination of defendant, andmaking improper comments during summation. Although defendant failed to preservehis challenges for our review (see generally People v Santiago, 22 NY3d 740, 749-750[2014]), we exercise our power to review them as a matter of discretion in the interest ofjustice (see CPL 470.15 [6] [a]; People v McClary, 85 AD3d 1622, 1624 [2011]), inasmuchas "we are mindful of our 'overriding responsibility' to ensure that 'the cardinal right of adefendant to a fair trial' is respected in every instance" (People v Wlasiuk, 32 AD3d674, 675 [2006], lv dismissed 7 NY3d 871 [2006], quoting People vCrimmins, 36 NY2d 230, 238 [1975]; see People v Ballerstein, 52 AD3d 1192, 1193 [2008]).Based upon that review, we agree with defendant that he was deprived of a fair trial, andwe therefore reverse the judgment and grant a new trial.
Initially, we agree with defendant that the prejudice created when the prosecutorquestioned defendant about his homosexuality and his former homosexual relationshipwith the victim's uncle, apparently at a time when the uncle was a young man, faroutweighed the minimal probative value that such evidence may have had (see Peoplev Mercado, 188 AD2d 941, 943-944 [1992]), especially in light of the charges here,wherein defendant was accused of having sexual contact with a boy. By asking thosequestions, the prosecutor improperly "cross-examine[d] the defendant about a [sexual]practice, not rising to the level of a crime, which had no logical bearing on the questionof credibility" (People v Moore, 156 AD2d 394, 394 [1989]).
[*2] In addition, the prosecutor cross-examined defendantat length regarding the criminal records of several people who resided in his home, andalso regarding assistance he provided to those people, such as bailing one of them out ofjail and hiring an attorney to defend that man on criminal charges. None of those peopletestified, nor was their credibility or criminal history otherwise relevant. Also, as notedabove, the prosecutor cross-examined defendant regarding a prior homosexualrelationship between defendant and the victim's uncle. By "pursu[ing] across-examination [that can be] accurately described as based upon 'twin themes of guiltby association and criminal propensity' " (People v Louissant, 240 AD2d433, 433 [1997]), the prosecutor deprived defendant of a fair trial (see People v Morgan, 111AD3d 1254, 1255-1256 [2013]; People v Parker, 178 AD2d 665, 666[1991]).
The prosecutor also engaged in misconduct by introducing evidence that one of thepeople who lived with defendant told a child to stay out of defendant's room "becauseyou don't know what [defendant] can do." That evidence "was irrelevant to any issue inthe case and only could have prejudiced defendant by suggesting to the jury that he wasan erratic and potentially dangerous person who had the propensity to commit the crimeat issue" or some other criminal act (People v Cornell, 110 AD3d 1443, 1445 [2013], lvdenied 22 NY3d 1087 [2014]; see generally People v Cass, 18 NY3d 553, 559 [2012];People v Molineux, 168 NY 264, 291-292 [1901]).
Next, the prosecutor improperly elicited testimony from a police investigator that hehad received training establishing that underaged victims of sexual crimes frequentlydisclosed the crime in minimal detail at first, and provided more thorough and intimatedescriptions of the event later. That testimony dovetailed with the People's positionconcerning the way in which the victim revealed this incident (cf. People v Gayden, 107AD3d 1428, 1428-1429 [2013], lv denied 22 NY3d 1138 [2014]). Thus, weconclude that the investigator's testimony "was the precise equivalent of affirming thecredibility of the People's witness through the vehicle of an opinion that [sexual abuse isfrequently committed] as the victim had related. It is always within the sole province ofthe jury to decide whether the testimony of any witness is truthful or not. The jurors werefully capable of using their ordinary experience to test the credibility of thevictim-witness; and the receipt of the [investigator]'s testimony in this regard wasimproper and indeed constituted usurpation of the function of the jury . . .Where, as here, the sole reason for questioning the 'expert' witness is to bolster thetestimony of another witness (here the victim) by explaining that his version of the eventsis more believable than the defendant's, the 'expert's' testimony is equivalent to anopinion that the defendant is guilty" (People v Ciaccio, 47 NY2d 431, 439[1979]), and the prosecutor improperly elicited that testimony.
Moreover, by eliciting that testimony, the prosecutor improperly introduced experttestimony regarding the Child Sexual Abuse Accommodation Syndrome. Although suchtestimony is admissible in certain situations (see People v Spicola, 16 NY3d 441, 465-467 [2011],cert denied 565 US &mdash, 132 S Ct 400 [2011]), here it was elicited from apolice investigator under the guise that it was part of the investigator's training. Theprosecutor failed to lay a foundation establishing that the investigator was qualified toprovide such testimony (cf.People v Hicks, 2 NY3d 750, 751 [2004]). Furthermore, the evidence does notestablish that the investigator had "extensive training and experience [that] rendered[him] qualified to provide such [testimony]" (People v Lewis, 16 AD3d 173, 173 [2005], lv denied4 NY3d 888 [2005]; cf.People v Bassett, 55 AD3d 1434, 1436 [2008], lv denied 11 NY3d 922[2009]).
Finally, the prosecutor further engaged in misconduct by commenting on theevidence that was improperly elicited, as well as by additional comments duringsummation, such as the prosecutor's comment that there was "a very sexually chargedatmosphere there on the second floor of [defendant's] house" (see generallyMercado, 188 AD2d at 943-944). She also commented that wrestling with the victim"[c]ould be a form of foreplay," without any evidence supporting that suggestive andemotionally charged statement.
In sum, "[w]e conclude that 'the cumulative effect of the prosecutor'scross-examination and summation errors deprived defendant of a fair trial' " (People v Hicks, 100 AD3d1379, 1380 [2012]).
All concur except Fahey, J., who dissents and votes to affirm in the followingmemorandum.
Fahey, J. (dissenting). I respectfully dissent and would affirm the judgment. I agreewith the majority that the verdict is not against the weight of the evidence (see People v Danielson, 9NY3d 342, [*3]349 [2007]; see generally Peoplev Bleakley, 69 NY2d 490, 495 [1987]). The People's case turned primarily on thetestimony of the victim, who cast defendant as a supervisory figure at a children'ssleepover held at defendant's home. The victim specifically testified that defendantinvited the children to sleep in his bedroom and that, while the victim was on defendant'sbed, defendant inserted his hand into the victim's pants and squeezed the victim's penis.The People also presented the testimony of the victim's older brother, who similarlyrecalled that defendant invited the subject children to sleep in defendant's bedroom, andthat defendant put his hand into the victim's pants while defendant and the victim werelying face-to-face on defendant's bed.
By contrast, defendant, the longtime supervisor of the Town of Trenton, testified thatthe children, whom he characterized as rambunctious, entered his bedroom uninvited.Defendant resided with one of the children present for the sleepover and, whiledefendant indicated that he was comfortable with the presence of that child in his bed, hewas uncomfortable with the presence of the victim in that location. Consequently, whenthe victim "hopped" into defendant's bed, defendant told the victim to leave the bed andtold the child with whom defendant was comfortable that such child could take thevictim's place. On cross-examination, defendant acknowledged that he had previouslyengaged in a sexual relationship with the father of the child with whom defendant wascomfortable, and that the father of that child also lived with defendant. At no point diddefendant admit to touching the victim but, under these circumstances, I agree with themajority that the jury was entitled to resolve what was essentially a contest of credibilitybetween the prosecution's witnesses and defendant against defendant (see People v Witherspoon, 66AD3d 1456, 1457 [2009], lv denied 13 NY3d 942 [2010]).
The same circumstances, however, lead me to conclude that this is not a case inwhich we should exercise our power to review defendant's remaining contentions, whichare not preserved for our review, as a matter of discretion in the interest of justice(see CPL 470.15 [6] [a]), and grant defendant a new trial. In my view, the jurywas justified in finding defendant guilty beyond a reasonable doubt even in the absenceof the evidence and comments that defendant now challenges (see Danielson, 9NY3d at 348). Indeed, even assuming, arguendo, that defendant's contentions withrespect to the admission of disputed evidence and what defendant contends were theprosecutor's improper comments have merit, I cannot agree with the majority thatdefendant was deprived of a fair trial by the cumulative effect of what I view thosealleged errors to be. Present—Smith, J.P., Fahey, Whalen and DeJoseph, JJ.