| People v Hagaman |
| 2016 NY Slip Op 03768 [139 AD3d 1183] |
| May 12, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vMichael Hagaman, Appellant. |
Lisa A. Burgess, Indian Lake, for appellant.
Kathleen B. Hogan, District Attorney, Lake George (Emilee B. Davenport ofcounsel), for respondent.
Devine, J. Appeal from a judgment of the County Court of Warren County (Hall Jr.,J.), rendered June 25, 2013, upon a verdict convicting defendant of the crimes ofpredatory sexual assault against a child (10 counts) and conspiracy in the seconddegree.
Defendant (born in 1984) and Anthony Merrill were charged in an indictment withvarious offenses stemming from their alleged repeated sexual abuse of a victim who wasless than two years of age at the time. The charges against Merrill were resolved in a pleaagreement that required him to cooperate in the prosecution of defendant. Following ajury trial at which Merrill testified against him, defendant was convicted of 10 counts ofpredatory sexual assault against a child and one count of conspiracy in the second degree.County Court denied defendant's motion to set aside the verdict and sentenced him to anaggregate prison term of 100 years to life. Defendant appeals, and we now affirm.
Defendant first asserts that the verdict was against the weight of the evidence. In thatregard, defendant was on parole in 2012 and was obliged to speak to his parole officerand obtain the officer's approval before contacting acquaintances.[FN1] He obtained permissionfrom the officer [*2]to go to Merrill's residence afterrepresenting that no children would be present. Defendant altered his story over time,however, and eventually admitted to the officer that he had been in contact with thevictim five times at Merrill's residence. The officer was concerned enough by defendant'slies, as well as his evasive and nervous demeanor, to obtain a parole warrant and takehim into custody. The officer further contacted State Police Investigator William Shea tolook into the situation. Shea interviewed Merrill and defendant separately, and both gavedetailed and largely consistent statements indicating that the victim had been subjected tovaried forms of sexual abuse on four separate occasions when defendant visited Merrill'sresidence. Merrill testified to the nature of that abuse at trial, stating that defendant hadperformed oral sex on the victim, forced his penis into the victim's mouth, and anallyraped the victim in differing combinations over the course of five incidents. The motherof the victim testified that she had left defendant and Merrill alone with the victim onseveral occasions, and that the victim was upset and crying when she returned. Defendantthen took steps to cover up the abuse after his parole officer's suspicions had beenaroused, seeking out advice on "beating" a polygraph test and advising Merrill that he"took care of" a digital camera that was used to record the incidents of abuse. The proofof defendant's guilt was accordingly compelling and, contrary to his contentions, thisvaried proof satisfied the corroboration requirements of CPL 60.22 (see People vBurgin, 40 NY2d 953, 954 [1976]) and CPL 60.50 (see People v Flemming, 101AD3d 1483, 1487 [2012], lv denied 21 NY3d 942 [2013]).
A different verdict arguably would have been reasonable. There was no physicalevidence to verify that the abuse had occurred, although two physicians testified thatsuch was not unusual due to the time that had passed before the victim was firstexamined. There was also some question as to whether four or five incidents of abusehad occurred, and the counts submitted to the jury only dealt with four incidents. Asidefrom those inconsistencies, as well as other variations in the accounts given by Merrill,defendant testified that the statements he made to Shea were untrue and that he had onlymade them because he was "agitated" by the interrogation and "wanted to [wrap it up] toget ready for dinner." Nevertheless, after "weigh[ing] conflicting testimony, review[ing]any rational inferences that may be drawn from the evidence and evaluat[ing] thestrength of such conclusions," and according due deference to the jury's assessment ofcredibility, we find that "the jury was justified in finding the defendant guilty beyond areasonable doubt" (People vDanielson, 9 NY3d 342, 348 [2007]; see People v Fournier, 137 AD3d 1318, 1320 [2016]).
Defendant next argues that the verdict should have been set aside due to the People'sfailure to disclose evidence used to impeach the credibility of one of his trial witnesses."The Due Process Clauses of the Federal and State Constitutions both guarantee acriminal defendant the right to discover favorable evidence in the People's possessionmaterial to guilt or punishment," and it follows that the People are obliged to turn overimpeachment evidence that favors the defense in some way (People v Fuentes, 12 NY3d259, 263 [2009] [citations omitted]; see Giglio v United States, 405 US 150,154-155 [1972]; Brady v Maryland, 373 US 83, 87 [1963]). As noted above, theabuse was allegedly recorded with a digital camera that defendant "took care of"afterwards. Defendant called that evidence into question via the testimony of his [*3]mother, who stated that a digital camera owned by him wasin her secure storage unit and that defendant had not handled the camera on the oneoccasion that they visited the unit around the time of the abuse. The People, in turn,impeached the mother's credibility by cross-examining her regarding her prior statementto Shea that defendant had handled the camera while they were at theunit.[FN2] Theremay well be circumstances where impeachment evidence would remain material andexculpatory—and thereby warrant disclosure—even if the People attempted"to avoid [its] disclosure . . . by not calling the relevant witness to testify"themselves (United States v Jackson, 345 F3d 59, 71 [2d Cir 2003], certsdenied 540 US 1157 [2004], 541 US 956 [2004]; compare United States vWilliams-Davis, 90 F3d 490, 513 [DC Cir 1996], certs denied 519 US 1128,1129 [1997], with United States v Johnson, 581 F3d 320, 331 [6th Cir 2009],cert denied 560 US 966 [2010]). Inasmuch as the prior statement of defendant'smother was in no way favorable to his defense, those circumstances are not present here.Therefore, County Court properly determined that the People did not run afoul of theirobligations under Brady and Giglio in failing to disclose the priorstatement (see People v Fuentes, 12 NY3d at 263; People v Sheppard, 107 AD3d1237, 1241 [2013], lv denied 22 NY3d 1203 [2014]).
Defendant also raises issues regarding the severity of his sentence by asserting that itwas "grossly disproportionate" to that received by Merrill, but "[t]he fact that defendant'ssentence was greater than that of his codefendant does not substantiate his claim that hewas improperly punished for going to trial" (People v Elwood, 80 AD3d 988, 990 [2011], lvdenied 16 NY3d 858 [2011]; see People v Roberts, 301 AD2d 756, 757[2003]). County Court explained the discrepancy at defendant's sentencing, contrastingthe uneventful criminal history of Merrill with defendant's repeated commission of sexoffenses involving young children. Indeed, after taking into account defendant's priorcriminal history, the heinous acts committed by him here and the evident danger he posesto children, we are unpersuaded that the aggregate sentence constituted an abuse ofdiscretion or that extraordinary circumstances warrant its modification in the interest ofjustice (see People vHughes, 114 AD3d 1021, 1025 [2014], lv denied 23 NY3d 1038 [2014];People v Alford, 65 AD3d1392, 1395 [2009], mod on other grounds 14 NY3d 846 [2010]).
Defendant's remaining arguments, to the extent that they are properly preserved forour review, have been considered and found to be lacking in merit.
McCarthy, J.P., Garry, Lynch and Clark, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1:Defendant's status as aparolee led to the discovery of his crimes and, as such, evidence regarding that status was"indisputably necessary to complete the narrative and inextricably intertwined with thefacts of the charged offense so as to permit the jury to be informed of" it (People vChestnut, 254 AD2d 525, 526 [1998], lv denied 93 NY2d 871 [1999][citations omitted]; accordPeople v Walker, 80 AD3d 793, 795 [2011]). County Court gave appropriatelimiting instructions to the jury that ameliorated any prejudice potentially caused by thatevidence (see People v Walker, 80 AD3d at 795).
Footnote 2:The People did not turnover the mother's prior statement before trial, but the effect of that failure is far fromclear, as they advised defense counsel both that the statement existed and that itcontradicted her more recent claim that defendant had not handled the camera at thestorage unit.