| People v Monroe |
| 2015 NY Slip Op 08867 [134 AD3d 1138] |
| December 3, 2015 |
| Appellate Division, Third Department |
[*1](December 3, 2015)
| The People of the State of New York,Respondent, v Richard R. Monroe Jr., Appellant. |
Justin C. Brusgul, Voorheesville, for appellant.
Kristy L. Sprague, District Attorney, Elizabethtown (James E. Martineau of counsel),for respondent.
Clark, J. Appeal from a judgment of the County Court of Essex County (Meyer, J.),rendered September 16, 2010, upon a verdict convicting defendant of the crime of courseof sexual conduct against a child in the first degree.
Following a jury trial, defendant was found guilty of one count of course of sexualconduct against a child in the first degree for repeatedly subjecting a child to sexualconduct between July 1, 2007 and October 31, 2008, when she was ages 10 and 11 andhe was in his 50s. Investigation into the abuse began in July 2008 after a married couplewitnessed defendant—the boyfriend of the child's mother—inappropriatelytouching and kissing the child in public on multiple occasions and notified the localpolice department. After the child provided police and child protective services with awritten statement describing defendant's abuse, defendant was arrested and indicted. Attrial, the child, who was 13 years old at that time, testified under oath that defendant firstforced her to touch his penis with her hand in July 2007. Among other things, the childalso testified that, while she was in defendant's bedroom around September 2008, heremoved her pants and her underwear and put his tongue on her vagina. County Courtsentenced defendant to a 25-year prison term, followed by 20 years of postreleasesupervision, and a $30,000 fine. Defendant now appeals.
The crime of course of sexual conduct against a child in the first degree required thePeople to prove that, over a period of time not less than three months in duration,defendant, being over age 18, "engage[d] in two or more acts of sexual conduct, whichinclude at least one act of . . . oral sexual conduct . . . with achild less than thirteen years old" (Penal Law § 130.75[*2][1] [b]). Defendant challenges the legal sufficiency andweight of the evidence, arguing only that the evidence does not support a finding that theSeptember 2008 incident constituted oral sexual conduct. We are unpersuaded by eitherargument.
Viewing the evidence in the light most favorable to the People, legally sufficientevidence was adduced to establish that defendant perpetrated the charged sexual conductover a period of three months or more (see People v Danielson, 9 NY3d 342, 349 [2007]). Thechild's testimony established that defendant engaged in two or more acts of sexualconduct, which included a number of acts of sexual contact and at least one act of oralsexual conduct (see Penal Law § 130.00 [2] [a]; [3]). Specifically,while acknowledging that her lexicon included another term for the word vagina, thechild provided detailed testimony regarding the September 2008 incident in which sheexplicitly stated that defendant put his tongue on her vagina. On cross-examination, thechild further explained that defendant's tongue touched her about an inch away from"where [her] urine comes out." Contrary to defendant's contentions, the foregoing wassufficient to establish that at least one act of oral sexual conduct occurred (see People v Sorrell, 108AD3d 787, 788-789 [2013], lv denied 23 NY3d 1025 [2014]; People v Lupo, 92 AD3d1136, 1137 [2012]).
Likewise, while an acquittal "would not have been unreasonable . . . thejury was justified in finding the defendant guilty beyond a reasonable doubt" (Peoplev Danielson, 9 NY3d at 348). Focusing largely on what he deems to beinconsistencies in the child's statements regarding the details of sexual conduct, as wellas the child's failure to disclose the oral sexual conduct during her initial interviews withthe police and a child protective services caseworker, defendant characterizes the child'stestimony as lacking in credibility. However, the mere fact that a young child may beuncertain or inconsistent in his or her disclosures or testimony will not justify reversing aguilty verdict as against the weight of the evidence (see People v Beauharnois, 64 AD3d 996, 998-999 [2009],lv denied 13 NY3d 834 [2009]; People v Weber, 25 AD3d 919, 921 [2006], lvdenied 6 NY3d 839 [2006]; People v Raymo, 19 AD3d 727, 728 [2005], lvdenied 5 NY3d 793 [2005]). Furthermore, the child testified that she did notimmediately disclose the full extent of defendant's sexual abuse because she was bothscared of hurting her mother and of getting in trouble and she was uncomfortable talkingabout the abuse to the police investigator. Thus, deferring to the jury's determination thatthe child was credible and viewing the evidence in a neutral light, defendant's convictionis not against the weight of the evidence (see People v Wyre, 97 AD3d 976, 978 [2012], lvdenied 19 NY3d 1030 [2012]; People v Reynolds, 81 AD3d 1166, 1166-1167 [2011],lv denied 16 NY3d 898 [2011]).
Finally, under the circumstances presented herein, we are unpersuaded by defendant'sclaim that the sentence imposed by County Court—the maximum allowable perstatute—was harsh or excessive (see People v Beauharnois, 64 AD3d at1001), and, therefore, decline to reduce the sentence as a matter of discretion in theinterest of justice (see CPL 470.15 [3]). As noted by County Court, defendanthad a lengthy history of sexual incidents involving young children and showed noremorse for his conduct (seePeople v Nowinski, 36 AD3d 1082, 1084 [2007], lv denied 8 NY3d 989[2007]). However, as the People concede, the fine imposed must be reduced as itexceeded the $5,000 statutory maximum allowable for defendant's conviction(see Penal Law § 80.00 [1] [a]).
Peters, P.J., Garry and Rose, JJ., concur. Ordered that the judgment is modified, onthe law, by reducing the fine imposed to[*3]$5,000 and,as so modified, affirmed.