| People v Skeen |
| 2016 NY Slip Op 03767 [139 AD3d 1179] |
| May 12, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vMaurice Skeen, Appellant. |
David E. Woodin, Catskill, for appellant.
P. David Soares, District Attorney, Albany (Vincent Stark of counsel), forrespondent.
Rose, J. Appeal from a judgment of the Supreme Court (Breslin, J.), rendered August28, 2013 in Albany County, upon a verdict convicting defendant of the crime ofpredatory sexual assault against a child.
Defendant was charged in 2012 with repeatedly having vaginal sexual intercoursewith the then 10-year-old victim while babysitting her at the residence of hergrandmother. After a jury trial, defendant was convicted of predatory sexual assaultagainst a child, and he was thereafter sentenced to a prison term of 25 years to life.Defendant now appeals.
Defendant argues that his conviction was against the weight of the evidence. As isrelevant here, to prove a charge of predatory sexual assault against a child, the Peoplewere required to show that defendant "commit[ted] the crime of . . . courseof sexual conduct against a child in the first degree" (Penal Law § 130.96).In turn, course of sexual conduct against a child in the first degree requires proof that,"over a period of time not less than three months in duration," defendant "engage[d] intwo or more acts of sexual conduct, which include[d] at least one act of sexualintercourse . . . with a child less than [11] years old" (Penal Law§ 130.75 [1] [a]).
It is undisputed that the victim tested positive in 2012 for genital herpes simplexvirus, type 2 (hereinafter HSV-2), which was "an abnormal finding for a [10] year oldgirl," according to the testimony of the sexual assault nurse examiner (hereinafter SANE)who examined the victim. Indeed, the fact that the victim was diagnosed with HSV-2 atsuch a young age is "highly [*2]indicative of sexualabuse" (Matter of I-ConsciousR. [George S.], 121 AD3d 566, 567 [2014], lv dismissed 24 NY3d 1205[2015]; see generally Matter of Philip M., 82 NY2d 238, 243 [1993]; see People v Brown, 67 AD3d1197, 1198 [2009]). Furthermore, the pediatrician who treated the victim testifiedthat, while taking the victim's medical history, the victim stated that she had beensexually abused for the past two years. The pediatrician also noted that, uponexamination, the victim's hymen was "quite thin," which was consistent with her reportedhistory of sexual abuse. Thus, the only genuine dispute regarding the weight of theevidence is whether or not defendant was the perpetrator of the abuse.
To that end, the People presented medical evidence that defendant, after he wasarrested, tested positive for HSV-2. During the victim's trial testimony, she unequivocallyidentified defendant as her abuser and then proceeded to describe numerous instances inwhich he would pull her away to another room, lay on top of her, "kiss on [her] and puthis penis inside of [her] vagina." The victim also recounted several specific details aboutthe assaults, including that, on at least one occasion, she observed defendant putting on acondom. Notably, the victim's grandmother testified that, earlier in 2012, she haddiscovered a condom in the basement of her residence, where the victim testified thatdefendant had sexually assaulted her approximately 10 times. When the grandmotherasked defendant about it, he admitted that the condom was his, but explained that he wasalone when he used it. At trial, defendant altered this story, claiming that he had not usedthe condom, but instead had provided it to a neighbor who had sexual intercourse withhis girlfriend in the grandmother's basement. Additionally, despite defendant's insistencethat he never sexually assaulted the victim, he acknowledged that, after discovering thatpolice were looking for him because the victim had accused him of sexually assaultingher, he had fled to New York City where he remained for several months until he turnedhimself in to a federal marshal.
The foregoing testimony presented a classic credibility contest that the jury resolvedin favor of the victim. While the victim's testimony contained some minor inconsistenciesregarding the time line and frequency of the sexual assaults, we note that "[j]uryresolution of credibility issues, particularly those involving sex-related conduct with avictim of tender years who may have difficulty recalling precise dates and times of theacts, will not be disturbed absent manifest error" (People v Johnson, 24 AD3d 967, 968 [2005], lvdenied 6 NY3d 814 [2006]; see People v Doherty, 305 AD2d 867, 867-868[2003], lv denied 100 NY2d 580 [2003]). Viewing the evidence in a neutral lightand "accord[ing] great deference to the jury's opportunity to view the victim['s] testimonyand assess [her] credibility, as well as [her] ability to recall the specific details and timeframes of particular sex crimes," we find that the verdict was in accordance with theweight of the evidence (Peoplev Jabaut, 111 AD3d 1140, 1144 [2013], lv denied 22 NY3d 1139[2014]; see People v Thiel,134 AD3d 1237, 1239-1240 [2015]; People v Santiago, 118 AD3d 1163, 1165 [2014], lvdenied 24 NY3d 964 [2014]).
Defendant also argues that he was unfairly prejudiced by the admission, over hisobjection, of three photographs depicting the victim's vagina with blisters that aresymptomatic of HSV-2. However, it is clear to us that "the pictures accurately depictedthe victim's [condition], corroborated the observations of the [SANE and the physician]who treated her . . . and were disturbing because of the victim's infancy andthe nature of her injuries rather than because they were presented in an unnecessarilyinflammatory manner" (People vClarke, 110 AD3d 1341, 1344-1345 [2013], lv denied 22 NY3d 1197[2014]; see People vFlowers, 122 AD3d 1396, 1397-1398 [2014], lv denied 24 NY3d 1219[2015]; People v Stebbins, 280 AD2d 990, 990 [2001], lv denied 96NY2d 925 [2001]). Contrary to defendant's argument, his concession at trial that thevictim suffered from HSV-2 did not make the sole purpose of admitting the photographs" 'to arouse the emotions of the jury and to prejudice the defendant' "(People v Wood, 79 NY2d 958, 960 [1992], quoting People v Pobliner,32 NY2d 356, 370 [1973], cert denied 416 US 905 [1974]; accord People v Thibeault, 73AD3d 1237, 1243 [2010], lv denied 15 NY3d 810 [2010], certdenied 562 US 1293 [2011]).
Defendant's further contention that he was denied a fair trial by the admission ofcertain hearsay testimony that bolstered the victim's direct testimony is unpreserved forour review, inasmuch as he failed to object to it at trial. Nor are we persuaded by hisalternative claim that his trial counsel's failure to object to the testimony deprived him ofthe effective assistance of counsel. Specifically, defendant maintains that his counselshould have objected to portions of the testimony of the SANE and the pediatrician inwhich they both discussed what the victim, the mother and the grandmother had statedabout the duration and frequency of defendant's sexually abusive conduct. However, thishearsay testimony did not name defendant, and it was properly admitted as germane tomedical diagnosis and treatment, as it was based upon the patient history collected by theSANE and the pediatrician during the course of their examinations of the victim (see People v Gross, 26 NY3d689, 695-696 [2016]; People v Spicola, 16 NY3d 441, 451-452 [2011], certdenied 565 US &mdash, 132 S Ct 400 [2011]; People v McCray, 102 AD3d 1000, 1009 [2013],affd 23 NY3d 193 [2014]). Accordingly, defense counsel cannot be faulted forfailing to object to this testimony, as any such objection would have had " 'littleor no chance of success' " (People v Caban, 5 NY3d 143, 152 [2005], quoting People v Stultz, 2 NY3d277, 287 [2004]; accordPeople v Gokey, 134 AD3d 1246, 1247 [2015]).
Defendant further takes issue with his counsel's failure to object to the testimony ofthe victim's grandmother, who stated that the victim, while being examined at thehospital, told her that defendant had been sexually assaulting her. While we agree withdefendant that his counsel should have objected to this testimony as improper bolstering(see People v Buie, 86 NY2d 501, 510 [1995]; People v Vargas, 60 AD3d1236, 1239 [2009], lv denied 13 NY3d 750 [2009]), it cannot be said thatthis singular error deprived defendant of meaningful representation. Indeed, thegrandmother's repetition of the victim's prior identification was ultimately harmless, as it"was brief in the overall context of her testimony [and] the People did not rely on it asdirect evidence of defendant's guilt" (People v Hughes, 114 AD3d 1021, 1023 [2014], lvdenied 23 NY3d 1038 [2014]). Furthermore, the victim's in-court identification ofdefendant, her detailed account of his repeated acts of sexual assault against her and theaccompanying medical evidence " 'precluded any significant probability that thejury would have acquitted the defendant had it not been for the bolstering error[]' " (People vCarter, 40 AD3d 1211, 1212 [2007], lv denied 9 NY3d 864 [2007],quoting People v Tinsley, 159 AD2d 602, 603 [1990]; see People vMobley, 56 NY2d 584, 585-586 [1982]).
We have examined defendant's remaining arguments, including his claim that he wasprejudiced by the mid-trial amendment of the indictment, and find them to be withoutmerit.
McCarthy, J.P., Egan Jr., Devine and Clark, JJ., concur. Ordered that the judgment isaffirmed.