| People v Fournier |
| 2016 NY Slip Op 01519 [137 AD3d 1318] |
| March 3, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vShane R. Fournier, Appellant. |
Randolph V. Kruman, Cortland, for appellant.
Kevin Jones, Special Prosecutor, Ithaca, for respondent.
Lynch, J. Appeal from a judgment of the County Court of Cortland County (Ames,J.), rendered August 13, 2013, upon a verdict convicting defendant of the crimes ofcriminal sexual act in the first degree, predatory sexual assault against a child, sexualabuse in the first degree and endangering the welfare of a child.
In January 2013, a seven-year-old child (hereinafter the victim) attended a karateclass taught by defendant. Although the class ordinarily included another student, thevictim was alone with defendant during the lesson, which lasted one hour. Uponreturning home from the class, the victim reported that, during the class, defendant pulleddown his pants and put his penis into the victim's mouth. The next day, the police werenotified and, after an investigation, defendant was charged in a four-count indictmentwith criminal sexual act in the first degree, predatory sexual assault against a child,sexual abuse in the first degree and endangering the welfare of a child. Following a jurytrial, defendant was convicted as charged. Defendant now appeals and we affirm.
Initially, defendant's argument that the People's evidence was legally insufficient tosupport the verdict was not preserved for our review because he did not renew themotion to dismiss—made at the close of the People's proof—after hetestified on his own behalf (seePeople v Robinson, 123 AD3d 1224, 1225 [2014], lv denied 25 NY3d992 [2015]). Nonetheless, we necessarily consider whether all the elements of the crimescharged were proven as part of our weight of the evidence review (see People v Thiel, 134 AD3d1237, 1238 [2015]; Peoplev Valverde, 122 AD3d 1074, 1075 [2014]). Under a weight of the evidenceanalysis, "if a [*2]different result would not have beenunreasonable, [this Court] must then weigh the relative probative force of conflictingtestimony and the relative strength of conflicting inferences that may be drawn from thetestimony" (People vNovick, 126 AD3d 1134, 1134 [2015], lv denied 25 NY3d 1075 [2015][internal quotation marks and citations omitted]).
Relevant here, "[a] person is guilty of predatory sexual assault against a child when,being [18] years old or more, he or she commits the crime of . . . criminalsexual act in the first degree . . . and the victim is less than [13] years old"(Penal Law § 130.96). As to the underlying crime, "[a] person is guilty ofcriminal sexual act in the first degree when he or she engages in oral sexual conduct. . . with another person . . . [w]ho is less than [11] years old"(Penal Law § 130.50 [3]). "A person is guilty of sexual abuse in the firstdegree when he or she subjects another person to sexual contact . . . [w]henthe other person is less than [11] years old" (Penal Law § 130.65 [3]).Defendant's conviction of endangering the welfare of the child "requires proof thatdefendant 'knowingly act[ed] in a manner likely to be injurious to the physical, mental ormoral welfare of a child less than [17] years old' " (People v Beauharnois, 64AD3d 996, 1001 [2009], lv denied 13 NY3d 834 [2009], quoting Penal Law§ 260.10 [1]).
At trial, it was undisputed that defendant and the victim were 42 and 7 years old,respectively, at the time the alleged acts occurred. The victim's father testified that he leftthe victim alone with defendant and went for a walk around the facility parking lot,checking in periodically. The victim testified at first that she could not remember whathappened during the karate class, and that she did not touch defendant. After this initialhesitancy, the victim confirmed that defendant did put his penis into her mouth anddescribed the event with specific detail, adding that defendant told her "don't tellanybody." The victim's mother testified that when the victim returned home from classthat evening, she reported in a "matter of fact" way what defendant had done. Defendanttestified that the event described by the victim never occurred. He confirmed that he hadpreviously been convicted of petit larceny, but had never been convicted of a sexcrime.
In our view, a different verdict would not have been unreasonable because, asdefendant argues, the child's testimony was initially equivocal and defendant denied theevent. As such, we weigh the probative force of conflicting testimony and inferences tobe drawn therefrom (see Peoplev Jackson, 128 AD3d 1181, 1182 [2015], lv granted 26 NY3d 1089[2015]; People v Novick, 126 AD3d at 1134). Insofar as the victim's initialtestimony was inconsistent, "[this Court has] long recognized that it is not uncommon foryoung children to be uncertain and even inconsistent in their trial testimony" (Peoplev Beauharnois, 64 AD3d at 998 [internal quotation marks and citations omitted]; see People v Russell, 116AD3d 1090, 1092 [2014]). Having seen and heard the victim's testimony, which wasspecific as to the event, and noting that she was cross-examined, we find that the jurywas entitled to credit her testimony. This is particularly so given the victim's prompt"matter of fact" disclosure to her mother, which served to corroborate her testimony (see People v Rosario, 17 NY3d501, 511-513 [2011]). Giving the requisite deference to the jury's credibilitydeterminations, we find that each of the convictions was supported by the weight of thecredible evidence (see People v Thiel, 134 AD3d at 1239; People v Santiago, 118 AD3d1163, 1164-1165 [2014], lv denied 24 NY3d 964 [2014]).
We reject defendant's argument that County Court improperly received sworntestimony from the minor victim. Generally, a witness less than nine years old may nottestify under oath unless the court confirms that he or she understands the nature of anoath (see CPL 60.20 [2]; People v Lashway, 112 AD3d 1222, 1222 [2013])." 'The resolution of the issue of witness competency is exclusively theresponsibility of the trial court, subject to limited appellate [*3]review' " (People v Miller, 295 AD2d 746,748 [2002], quoting People v Parks, 41 NY2d 36, 46 [1976]; see People vLashway, 112 AD3d at 1223). Here, the victim was questioned at length outside ofthe presence of the jury. During this testimony, she confirmed that she understood thedifference between the truth and a lie, that it was necessary that she tell the truth and thatit was wrong and she could be punished if she did not tell the truth during her testimony.Accordingly, we find that County Court did not abuse its discretion in allowing thevictim to give sworn testimony (see People v Lashway, 112 AD3d at 1223; People v Mendoza, 49 AD3d559, 560 [2008], lv denied 10 NY3d 937 [2008]; People v Munroe,307 AD2d 588, 591 [2003], lv denied 100 NY2d 644 [2003]).
Defendant also argues that he was improperly cross-examined regarding prior badacts. After a pretrial Sandoval hearing, County Court ruled that the People couldquestion defendant with regard to a prior petit larceny conviction. During the trial, thePeople questioned defendant with regard to his alleged prior drinking and a fight with acoworker. Defendant objected to the relevancy of these questions, but did not raise theissue presented on this appeal—that the questions violated the court'sSandoval ruling. Absent a specific objection on this point duringcross-examination, the issue is not preserved for our review (see People v Facey, 48 AD3d210, 210-211 [2008], lv denied 10 NY3d 840 [2008]; People v Siriani, 27 AD3d670, 670 [2006], lv denied 6 NY3d 898 [2006]; People v Booth, 265AD2d 485, 485 [1999], lv denied 94 NY2d 860 [1999]).
Finally, we find that defendant failed to preserve his argument that he was denied theright to a fair trial based on certain comments made by a prospective juror during juryselection. Following the offending comments, County Court excused the juror anddefendant did not make any contemporaneous request for relief (see People v Bruno, 63 AD3d1297, 1299 [2009], lv denied 13 NY3d 858 [2009]; People v Scott,276 AD2d 371, 372 [2000], lv denied 95 NY2d 968 [2000]).
McCarthy, J.P., Egan Jr. and Devine, JJ., concur. Ordered that the judgment isaffirmed.