| People v Adams |
| 2016 NY Slip Op 00389 [135 AD3d 1154] |
| January 21, 2016 |
| Appellate Division, Third Department |
[*1](January 21, 2016)
| The People of the State of New York, Respondent, v Elwood J. Adams, Jr., Appellant. |
Matthew C. Hug, Troy, for appellant.
Derek P. Champagne, District Attorney, Malone (Jennifer M. Hollis of counsel), forrespondent.
Clark, J. Appeal from a judgment of the County Court of Franklin County (Catena,J.), rendered June 7, 2013, upon a verdict convicting defendant of the crime of course ofsexual conduct against a child in the first degree (two counts).
In October 2012, defendant, who was born in 1972, was charged in an indictmentwith two counts of course of sexual conduct against a child in the first degree stemmingfrom allegations that, between September 1, 2005 and October 1, 2007, he engaged intwo or more acts of sexual conduct with victim A (born in 1994) and victim B (born in1996), who were both less than 13 years of age. Following a jury trial, defendant wasconvicted of both counts and his motion to set aside the verdict pursuant to CPL 330.30was denied. Defendant was sentenced to a prison term of 20 years and 20 years ofpostrelease supervision on each count, which sentences were to run concurrently.Defendant appeals. Finding no merit to his contentions, we affirm.
Initially, defendant claims that the verdict was against the weight of the evidencepointing to, among other things, a lack of corroboration of the victims' testimony, which,according to him, was also contradictory. While a different verdict would not have beenunreasonable here, upon our independent review and weighing of the conflictingtestimony in a neutral light and deferring to the jury's determination to credit the victims'accounts, we cannot agree that the jury failed to give the evidence its deserving weight(see People v Danielson, 9NY3d 342, 348 [2007]; People v Olson, 110 AD3d 1373, 1374 [2013], lvdenied 23 NY3d 1023[*2][2014]; People v Fernandez, 106 AD3d1281, 1282-1283 [2013]). Victim A testified that, in September 2005, when she wasin the sixth grade, defendant told her that he wanted to teach her about sex and began byexposing her to pornography. He then progressed from groping her to penetrating hervagina with a sexual device and his fingers, performing oral sex on her, and forcing herto touch his penis with her hand. According to victim A, those instances of sexual abuseoccurred often and in a variety of locations and took place while her mother was at workand her siblings were either outside of the residence or were otherwise busied. Accordingto victim A, she did not tell anyone about the abuse while it was taking place because shewas afraid and defendant had told her that, if she disclosed their sexual interaction, theother children would grow up without a father figure and the family would fall apart and,moreover, no one would believe her.
Victim B, victim A's younger sister, testified that she was between 9 and 10 years oldin September 2005, when defendant began sexually abusing her after having found outthat her mother had told her about sex. According to victim B, defendant stated that hewanted to teach her more about sex and show her "how things would feel." Defendant'sabuse of victim B also progressed over time and involved grabbing her, touching her,performing oral sex on her, forcing her to perform oral sex on him, and penetrating hervagina with a sexual device and his fingers. Like victim A, victim B described beingabused by defendant "whenever he could" when "nobody else was around." According tovictim B, she never told anyone about the abuse while it was taking place becausedefendant told her not to and, if she told anyone, he would go to jail and the familywould split up.
"While there were discrepancies in some of the details, they were fully explored andhighlighted for the jury, and it is 'not uncommon for young children to be uncertain andeven inconsistent in their trial testimony' " (People v Fernandez, 106AD3d at 1283-1284, quoting People v Raymo, 19 AD3d 727, 728 [2005], lvdenied 5 NY3d 793 [2005]). Moreover, despite any discrepancies, we feel itimportant to note that the children remained resolute that the alleged sexual conduct hadoccurred, a fact that was obviously credited by the jury. Furthermore, the experttestimony of a clinical psychologist, Don Lewittes, offered by the People, aided the jury'sunderstanding of the reasons that children delay disclosure, particularly when sexualabuse occurs in family settings.
Defendant testified, denying that any sexual contact of any nature had occurred andoffering explanations for why the victims would be motivated to fabricate the allegationsagainst him. Defendant did, however, admit to telling the victims about ejaculation. Healso conceded telling the victims that sex was the greatest thing they would ever feel andthat it would hurt at first but, if they used a "[sex] toy," it might make it easier for them tohave intercourse when they turn 18. He also acknowledged that he "may have" toldvictim A that he would go to jail when she accused him of sexually molesting her.Additionally, defendant's statement to the police—which was properly admittedinto evidence at trial—contained similar explanations of conduct wherebydefendant claimed to have simply been offering advice to the victims by, for example,instructing them to wash sexual devices before use. Under these circumstances, we findno basis to conclude that the jury's determination to credit the victims' accounts is againstthe weight of the evidence (see People v Bleakley, 69 NY2d 490, 494-495[1987]; People v Raymo, 19 AD3d at 728).
Nor do we find merit in defendant's contention that he was denied the effectiveassistance of counsel. In this regard, we are mindful "to avoid both confusing trueineffectiveness with mere losing tactics and according undue significance toretrospective analysis" (People v Baldi, 54 NY2d 137, 146 [1981]; see People v Stultz, 2 NY3d277, 283[*3][2004]), and we view the record in itstotality in order to determine whether the defendant was deprived of a fair trial by lessthan meaningful representation (see People v Benevento, 91 NY2d 708, 712[1998]; People v Baldi, 54 NY2d at 147).
Initially, counsel was not ineffective for failing to object either to the experttestimony or to the People's related comments on summation. It is well settled that anexpert witness may testify about intra-familial child and adolescent child sexual abusesyndrome, child sexual abuse accommodation syndrome or other types of conditionsassociated with victims of sex abuse (see People v Williams, 20 NY3d 579, 584 [2013]), so longas he or she does not draw any comparison to the facts of the case (see People v Spicola, 16 NY3d441, 465 [2011], cert denied 565 US &mdash, 132 S Ct 400 [2011];People v Taylor, 75 NY2d 277, 293 [1990]), as was the case here. Although, asnoted by defendant, the expert's testimony supported the victims' assertions, it does notfollow that Lewittes improperly bolstered their testimony or drew a comparison betweenchild sexual abuse syndrome and the facts of this case, particularly in light of defensecounsel's cross-examination of the victims and defendant's own testimony that tended tosuggest, among other things, that the victims' actions were inconsistent with having beensexually abused (see People v Spicola, 16 NY3d at 465-466). For the samereasons, the People's comments on summation referencing the expert's testimony"constituted fair comment on the evidence" (People v Jabaut, 111 AD3d 1140, 1146 [2013], lvdenied 22 NY3d 1139 [2014]).
Next, inasmuch as defendant testified to his continuing visitation with his children,we find no error in defense counsel's failure to object to the People's further inquiry intowhether the visitation was supervised (see generally People v Wiltshire, 96 AD3d 1227, 1229[2012], lv denied 22 NY3d 1204 [2014]). Further, because defendant's writtenstatement did not involve prior bad acts or uncharged crimes, we find no error incounsel's failure to make a Ventimiglia motion to preclude its use or his failure tomake a motion in limine to redact it. Viewing counsel's opening and closing statementsas a whole, we find that counsel did not impermissibly assume the burden of proof.Moreover, the record reveals that, throughout the trial, the jury was repeatedly told andreminded by County Court that the burden never shifts and that defendant had noobligation to offer any proof in defense. Additionally, in his closing argument, defensecounsel stated to the jury that the court would instruct it that, before it can return a guiltyverdict, it must conclude that defendant's guilt was established beyond a reasonabledoubt. In this regard, defense counsel pointed out the deficiencies in the People's proof,arguing that such deficiencies created a "very significant question of doubt."Furthermore, counsel's statements were not so egregious that they would amount toineffective assistance of counsel absent any other significant errors—of whichthere were none (comparePeople v Dean, 50 AD3d 1052, 1053 [2008]). Thus, the record before usdemonstrates that counsel vigorously cross-examined the victims and pointed outinconsistencies and, as such, we have no reason to doubt that defendant was providedwith meaningful representation (see People v Henry, 95 NY2d 563, 565-566[2000]).
We also find no merit to defendant's argument that his sentence, which is well withinthe statutorily permissible range (see Penal Law §§ 70.80 [4][a] [i]; 130.75 [1] [b]), was harsh or excessive (see People v Pimentel, 108 AD3d 861, 861 n 1 [2013],lv denied 21 NY3d 1076 [2013]). Given the age of the victims, the duration ofthe conduct, the position of trust that defendant had held and abused, the nature of theconduct involved and his lack of remorse, we find no extraordinary circumstances or anabuse of discretion warranting a modification (see People v Sorrell, 108 AD3d 787, 794 [2013], lvdenied 23 NY3d 1025 [2014]; People v Pimentel, 108 AD3d at 864).
Defendant's contention that he was deprived of a fair trial because of prosecutorialmisconduct was not properly preserved for our review. Defendant's remainingcontentions, to the extent not specifically addressed herein, are without merit.
Peters, P.J., McCarthy, Egan Jr. and Devine, JJ., concur. Ordered that the judgment isaffirmed.