| People v Atta |
| 2015 NY Slip Op 01809 [126 AD3d 713] |
| March 4, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Mohammed Atta, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Warren S. Landau of counsel), for appellant,and appellant pro se.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove andAnthea H. Bruffee of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Ingram, J.), rendered August 17, 2009, convicting him of course of sexual conductagainst a child in the first degree, course of sexual conduct against a child in the seconddegree, criminal sexual act in the second degree (8 counts), rape in the third degree (5counts), sexual abuse in the second degree (36 counts), sexual abuse in the third degree(42 counts), and endangering the welfare of a child (2 counts), upon a jury verdict, andimposing sentence.
Ordered that the judgment is modified, as a matter of discretion in the interest ofjustice, by vacating the convictions of criminal sexual act in the second degree (8 counts)under counts 3 and 97 through 103 of the consolidated indictment, the convictions ofsexual abuse in the second degree (36 counts) under counts 32 through 39, 41 through47, and 111 through 131 of the consolidated indictment, and the convictions of sexualabuse in the third degree (42 counts) under counts 48 through 61, 63 through 75, and 77through 91 of the consolidated indictment, vacating the sentences imposed on thosecounts of the consolidated indictment, and dismissing those counts of the consolidatedindictment; as so modified, the judgment is affirmed.
The complainants, Gabrielle B. and her younger sister, Angela B., alleged that thedefendant, their stepfather, then in his late forties and early fifties, sexually abused themfor years. With respect to Gabrielle, the abuse allegedly started in December 2000, whenshe was 10 years old. With respect to Angela, it allegedly started in August 2003,approximately when she turned 10 years old. With respect to each of them, the abuseallegedly continued until mid-August 2007, when the defendant went on a trip to hisnative country, Egypt. When he returned from the trip near the end of September of thatyear, Gabrielle told her older sister, Monica, and her Aunt Dorothy, who was acaseworker with the New York City Administration for Children's Services, of the abuse.Thereafter, Angela disclosed to her mother that she, too, had been abused by thedefendant.
The defendant was tried on 95 counts of a 132-count consolidated indictment,charging him with course of sexual conduct against a child in the first degree, course ofsexual conduct in the second degree, and multiple counts of rape in the third degree,criminal sexual act in the second degree, sexual abuse in the second degree, sexual abusein the third degree, and endangering the welfare of a child. The consolidated indictmentalleged that the defendant [*2]committed the crimes ofcriminal sexual act in the second degree, sexual abuse in the second degree, and sexualabuse in the third degree over the course of multiple years. Those charges weretemporally divided in the consolidated indictment, such that the vast majority of thosecounts alleged a crime spanning an approximately two-month period, while the othersalleged a crime spanning a period of either two weeks or 1
The defendant contends that his convictions of criminal sexual act in the seconddegree, sexual abuse in the second degree, and sexual abuse in the third degree should bevacated because the counts of the consolidated indictment charging those crimes failed toprovide him with fair notice of the charges against him. An indictment must provide adefendant with fair notice of the charges against him or her, and of the manner, time, andplace of the conduct underlying the accusations, so as to enable the defendant to answerthe charges and prepare an adequate defense (see People v Keindl, 68 NY2d 410,416 [1986]; People v Morris, 61 NY2d 290, 293 [1984]). As pertinent to thiscase, when a defendant is "charged with a crime that is perpetrated by commission of asingle act and time is not a substantive element of the crime charged, the allegation ofwhen that act was committed must be reasonably specific in light of all the circumstancesof the particular case" (People v Shack, 86 NY2d 529, 540 [1995]; seeCPL 200.50 [6]). Although an allegation of a designated period of time may suffice forthe purposes of CPL 200.50 (6), any such period must be reasonable (see People vMorris, 61 NY2d at 295; People v Vogt, 172 AD2d 864, 865 [1991]).
Here, numerous counts of the consolidated indictment charged various acts ofcriminal sexual act (see Penal Law § 130.45 [1]) and sexual abuse(see Penal Law §§ 130.55, 130.60), which involved severalsingle acts. These acts spanned a time period of at least four years with respect toGabrielle, and approximately one year with respect to Angela. In an effort to specify atime period that was not unreasonably excessive, the District Attorney drafted theindictment to divide these time periods mostly into two-month intervals. Although theindictment, on its face, may have been sufficient, the trial testimony revealed that thecomplainants lacked any ability "to particularize the date and time of the alleged. . . offense[s]" (People v Morris, 61 NY2d at 296), and that therewas no real basis in fact for the intervals alleged with respect to these counts (seePeople v Vogt, 172 AD2d at 865; see also People v Watt, 192 AD2d 65, 69[1993], affd 84 NY2d 948 [1994]; cf. People v Black, 65 AD3d 811, 813 [2009]). Thus, "[t]hemere fact that the District Attorney artfully drafted the indictment by arbitrarily dividing"those otherwise excessive time periods into two-month intervals despite the absence ofany basis in fact, "cannot detract from the conclusion that the time periods" with respectto these single-act crimes "were unreasonable" under the circumstances here (Peoplev Vogt, 172 AD2d at 865; see People v Beauchamp, 74 NY2d 639 [1989];People v Keindl, 68 NY2d at 416; People v Morris, 61 NY2d at 296).Under the circumstances of this case, despite the defendant's failure to preserve the issuefor appellate review, we reach the issue in the interest of justice, and we vacate thedefendant's convictions of criminal sexual act in the second degree, sexual abuse in thesecond degree, and sexual abuse in the third degree (see People v Jean, 117 AD3d 875 [2014]; People v Quinones, 8 AD3d589 [2004]; see also People v Senisi, 196 AD2d 376, 382 [1994]).
The defendant failed to preserve for appellate review his contention that the evidencewas legally insufficient to establish his guilt of course of sexual conduct against a childin the first degree, course of sexual conduct against a child in the second degree, rape inthe third degree, and endangering the welfare of a child (see CPL 470.05 [2]; People v Hawkins, 11 NY3d484, 492 [2008]; People vHewitt, 82 AD3d 1119, 1121 [2011]; People v Crawford, 38 AD3d 680 [2007]). In any event,viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish thedefendant's guilt of those crimes beyond a reasonable doubt. Moreover, in fulfilling ourresponsibility to conduct an independent review of the weight of the evidence (seeCPL 470.15 [5]; People vDanielson, 9 NY3d 342, 348 [2007]), we nevertheless accord great deference tothe factfinder's opportunity to view the witnesses, hear the testimony, and observedemeanor (see People v Mateo, 2 NY3d 383, 410 [2004]; People vBleakley, 69 NY2d 490, 495 [1987]). [*3]Uponreviewing the record here, we are satisfied that the verdict of guilt was not against theweight of the evidence (seePeople v Romero, 7 NY3d 633 [2006]). Contrary to the defendant's contention,the complainants' testimony was not incredible or unreliable. Furthermore, contrary to thedefendant's contention, the evidence was sufficient to establish the penetration element ofthe crime of rape in the third degree under count 11 of the consolidated indictment,which was designated as "Count 6 Submitted" on the jury's verdict sheet.
The defendant contends that numerous counts were rendered duplicitous by virtue ofthe complainants' testimony or were otherwise multiplicitous by virtue of the fact thatsexual abuse was charged in two or three separate counts based on multiple acts arisingout of the same single incident. He further contends that his convictions of criminalsexual act in the second degree, sexual abuse in the second degree, and sexual abuse inthe third degree were not supported by legally sufficient evidence. In light of ourdetermination, these contentions have been rendered academic.
The defendant's remaining contentions, including those raised in his pro sesupplemental brief, are without merit. Balkin, J.P., Chambers, Hinds-Radix and Maltese,JJ., concur.