| People v Pabon |
| 2015 NY Slip Op 02586 [126 AD3d 1447] |
| March 27, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vLuis A. Pabon, Appellant. |
Easton Thompson Kasperek Shiffrin LLP, Rochester (Brian Shiffrin of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Robert J. Shoemaker of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Thomas E. Moran,J.), rendered February 24, 2014. The judgment convicted defendant, after a nonjury trial,of course of sexual conduct against a child in the first degree.
It is hereby ordered that the judgment so appealed from is affirmed.
Memorandum: On appeal from a judgment convicting him upon a nonjury verdict ofcourse of sexual conduct against a child in the first degree (Penal Law§ 130.75 [1] [a]), defendant contends that Supreme Court erred in refusingto dismiss the indictment as time-barred. We reject that contention. Contrary todefendant's contention, the court properly applied CPL 30.10 (3) (f), which, as relevanthere, tolls the statute of limitations for sexual offenses committed against a minor untilthe age of 18 (see People vQuinto, 18 NY3d 409, 413 [2012]).
Contrary to the further contention of defendant, viewing the evidence in light of theelements of the crime in this nonjury trial (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]). " 'In a bench trial, no lessthan a jury trial, the resolution of credibility issues by the trier of fact and itsdetermination of the weight to be accorded the evidence presented are entitled to greatdeference' " (People vMcCoy, 100 AD3d 1422, 1422 [2012]), and we see no reason to disturb thecourt's credibility determinations.
We agree with defendant that the court erred in permitting a detective to testify thatdefendant lied to the detective during his interview (see People v Kozlowski, 11 NY3d 223, 240 [2008],rearg denied 11 NY3d 904 [2009], cert denied 556 US 1282 [2009]; People v Jennings, 33 AD3d378, 379 [2006], lv denied 7 NY3d 926 [2006]). We conclude, however, that"any error with respect to the admission of that testimony is harmless because, in anonjury trial, the court is presumed to be capable of disregarding any improper or undulyprejudicial aspect of the evidence" (People v Wise, 46 AD3d 1397, 1399 [2007], lvdenied 10 NY3d 872 [2008]; see People v LoMaglio, 124 AD3d 1414, 1416 [2015]; People v Wegman, 2 AD3d1333, 1334-1335 [2003], lv denied 2 NY3d 747 [2004]). Indeed, the courtmade it clear that it was not accepting the detective's opinion as to defendant's veracity(see generally People v Tong Khuu, 293 AD2d 424, 425 [2002], lvdenied 98 NY2d 714 [2002]).
We reject the further contention of defendant that the court erred in precluding himfrom introducing into evidence a voicemail message he allegedly received from thevictim's mother in 1999. It is well established that a party "cannot introduce extrinsicdocumentary evidence or call other witnesses to contradict a witness' answers concerningcollateral matters solely for the purpose of impeaching that witness' credibility"(People v Pavao, 59 NY2d 282, 288-289 [1983]; see People v Alvino, 71NY2d 233, 247-248 [1987]). Here, defendant sought to introduce the message for thepurpose of impeaching the victim's testimony that her mother moved to Puerto Rico toget away from defendant, who allegedly was abusing her. Contrary to defendant'scontention, the [*2]mother's reasons for moving to PuertoRico and the state of her relationship with defendant were not material issues in this caseand, therefore, defendant was not entitled to introduce evidence to impeach the victim'scredibility on that collateral issue (see People v Salim, 96 AD3d 1484, 1485 [2012], lvdenied 19 NY3d 1028 [2012]; People v Clarkson, 78 AD3d 1573, 1574 [2010], lvdenied 16 NY3d 829 [2011]). We likewise reject defendant's contention that thecourt erred in denying his request for a missing witness charge with respect to thevictim's mother. It is undisputed that the victim's mother was in Puerto Rico at the time ofthe crime at issue and that she did not learn of the sexual abuse until shortly before theabuse was reported to the authorities. Thus, her testimony was not " 'material tothe trial,' " as required for a missing witness instruction (People v Hall, 18 NY3d122, 131 [2011]).
There is no merit to defendant's contention that the court's refusal to "sequester"certain "evidence," i.e., the court's cell phone, computer and a document that the courtwas allegedly viewing during the trial, deprived him of appellate review of his motion fora mistrial based upon the court's alleged misconduct (see generally People vMoreno, 70 NY2d 403, 405-406 [1987]).
Finally, we conclude that, contrary to defendant's contention, any prosecutorialmisconduct on summation did not deprive defendant of a fair trial in the context of thisnonjury trial (see People vPruchnicki, 74 AD3d 1820, 1822 [2010], lv denied 15 NY3d 855[2010]; see also People v Gupton, 281 AD2d 963, 963 [2001], lv denied96 NY2d 863 [2001]).
All concur except DeJoseph, J., who dissents and votes to reverse in the followingmemorandum.
DeJoseph, J. (dissenting). I respectfully dissent because I cannot agree with themajority's conclusion that the indictment was not time-barred.
During the time period relevant herein, CPL 30.10 (3) (e) provided that "[a]prosecution for course of sexual conduct in the first degree as defined in [Penal Law§ 130.75] . . . may be commenced within five years of thecommission of the most recent act of sexual conduct." CPL 30.10 (3) (f), on the otherhand, provided that, "[f]or purposes of a prosecution involving a sexual offense asdefined in [Penal Law article 130] committed against a child less than eighteen years ofage, . . . the period of limitation shall not begin to run until the child hasreached the age of eighteen or the offense is reported to a law enforcement agency orstatewide central register of child abuse and maltreatment, whichever occurs earlier." Themajority appears to conclude that paragraph (e) established the applicable statute oflimitations for the offense of course of sexual conduct against a child in the first degree(Penal Law § 130.75), while paragraph (f) tolled the statute of limitationsfor all sex offenses as defined in article 130 committed against minors and, becausecourse of sexual conduct is an article 130 offense, the paragraph (f) tolling provisionmust apply. I disagree.
In my view, the majority's interpretation of these two paragraphs fails to apply anytrue meaning to paragraph (e) and I therefore must agree with the defendant that, if CPL30.10 (3) (f) were applicable to all article 130 offenses, CPL 30.10 (3) (e) would berendered "superfluous and ineffective." I find no basis to interpret these statutes anydifferently, inasmuch as it is well recognized that general provisions of the CPL (i.e.,paragraph [f]) should not override specific provisions of the CPL (i.e., paragraph [e])(see e.g. People v Jackson, 87 NY2d 782, 790 [1996]).
Furthermore, the majority's reliance on People v Quinto (18 NY3d 409 [2012]) is misplaced.Quinto simply addresses the "triggering" event contemplated by paragraph (f) anddoes not discuss the interplay of the two paragraphs at issue here (see id. at 412).Paragraphs (e) and (f) were enacted as part of the same legislative package in 1996 (L1996, ch 122, § 1). Paragraph (e) remained the same until 2006 whenreference to, inter alia, "course of sexual conduct in the first degree" was removed fromparagraph (e) and CPL 30.10 (2) (a) was amended to read that a prosecution for "courseof sexual conduct against a child in the first degree as defined in [Penal Law§ 130.75] may be commenced at any time" (L 2006, ch 3, § 2).In my view, if the Legislature intended the tolling provision of paragraph (f) to apply tocourse of sexual conduct against a child in the first degree (Penal Law§ 130.75), it would not have simultaneously enacted paragraph (e), with itsspecific requirement of a five-year limitation period.
In view of the foregoing, I would reverse the judgment and dismiss the indictment astime barred. Present—Centra, J.P., Peradotto, Carni, Sconiers and DeJoseph,JJ.