| People v Ressy |
| 2016 NY Slip Op 05516 [141 AD3d 839] |
| July 14, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Pedro Ressy, Also Known as Alex Ressy,Appellant. |
Thomas F. Garner, Middleburgh, for appellant.
James E. Conboy, District Attorney, Fonda (Sarah J. Leszczynski of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the County Court of Montgomery County(Catena, J.), rendered June 20, 2013, upon a verdict convicting defendant of the crimesof course of sexual conduct against a child in the first degree (two counts) andendangering the welfare of a child (four counts).
In September 2012, defendant, who was born in 1977, was charged in a six-countindictment stemming from allegations of repeated abuse of victim A (born in 2005),victim B (born in 2005), victim C (born in 2003) and victim D (born in 2002)—allof whom were the children of defendant's then live-in paramour. Specifically, defendantwas charged with two counts of course of sexual conduct against a child in the firstdegree, alleging that he engaged in two or more acts of sexual conduct with victim A andvictim B, both of whom were less than 11 years of age, and four counts of endangeringthe welfare of a child as it pertained to victims A, B, C and D. After hearing thetestimony offered by, among others, all four victims, their siblings and their mother, thelatter of whom testified on behalf of defendant, the jury found defendant guilty of allcharges. County Court thereafter sentenced defendant to an aggregate prison term of 44years—consisting of a prison term of 20 years followed by 20 years of postreleasesupervision on each count of course of sexual conduct against a child in the first degreeand one year with respect to each count of endangering the welfare of a child, whichsentences were to run consecutively. This appeal by defendant ensued.
Defendant initially challenges the legal sufficiency of the evidence supporting the[*2]conviction with respect to the two counts allegingcourse of sexual conduct against victim A and victim B. While we find that defendant'slegal sufficiency argument was not preserved by his general motion to dismiss at trial (see People v Cruz, 131 AD3d724, 724 [2015], lv denied 26 NY3d 1087 [2015]; People v Heyliger, 126 AD3d1117, 1118 [2015], lv denied 25 NY3d 1165 [2015]), defendant alsocontends that the verdict convicting him of each of the charged crimes is against theweight of the evidence and, therefore, we necessarily review the evidence presented as toeach element of the crimes charged (see People v Danielson, 9 NY3d 342, 349 [2007]; People v Luckette, 126 AD3d1044, 1045 [2015], lv denied 26 NY3d 1110 [2016]; People v Santiago, 118 AD3d1163, 1164 [2014], lv denied 24 NY3d 964 [2014]). In this regard, to theextent that the charged crimes contained specific age requirements for the victims(see Penal Law §§ 130.75 [1] [a]; 260.10 [1]), we find that thetestimony adduced at trial established that the ages of all four victims satisfied therequirements embodied in the crimes at issue.
With respect to the charges of course of sexual conduct against victim A and victimB, each victim testified that defendant had subjected them to repeated sexual conduct intheir mother's room at several residences during certain intervals over the course ofapproximately two years.[FN1] At trial, victim A and victim B, both ofwhom then were eight years old, testified that defendant began his abuse by exposingthem to pornographic movies. Defendant then progressed from compelling victim A towatch pornography to, among other acts, "put[ting] his penis in [the victim's] butt andtouch[ing the victim's] penis." Although victim A did not provide specific dates, heremembered the street names of the residences where the abuse occurred and testifiedthat defendant subjected him to anal sexual conduct at least five times while they residedat one particular location. The testimony of victim A's father and the parties' stipulationestablished that such abuse occurred between April 2011 and June 2011. In addition,victim A testified to at least one instance in which his mother was lying on the bed andwatched as defendant "touched" him. Victim A also testified that, on one occasion,victim C "snuck[ ]" into his mother's room and "crawled under the bed" while defendantwas abusing him and, on another occasion, victim D was "slamming on the door peekingthrough the hole at the bottom" while defendant was making him watch pornographicmovies—all of which was corroborated by the testimony of victim C and victim D,respectively. Finally, although defendant attempted to portray victim A's testimony asrehearsed or coached, victim A denied that he had been instructed as to how to describethe manner or the frequency of the abuse.
Similarly, victim B testified that defendant perpetrated several acts of sexual conductagainst him at two different locations where the family resided. Specifically, victim Btestified that defendant sodomized him when he was asleep, which caused him to bleed.Victim B also testified that, at one residence, defendant inserted his penis "[w]here yougo poop" on approximately five occasions. Based on the testimony adduced at trial, theseincidents occurred between April 2009 and February 2010. Further, victim B testifiedthat, while at another residence, defendant committed anal sexual conduct against him onapproximately four occasions during which his mother was present. Again, othertestimony at trial established that such abuse occurred between April 2011 and June2011. Finally, both victim A and victim B recalled that defendant played music at a highvolume in order to conceal the sounds of the abuse [*3]when their other siblings were present at the sameresidence.
Upon consideration of the foregoing evidence, and granting deference to the jury'scredibility determinations, we are satisfied that the jury's verdict as to these counts is inaccord with the weight of the evidence (see People v Monroe, 134 AD3d 1138, 1140 [2015]; People v Hayes, 104 AD3d1050, 1054-1055 [2013], lv denied 22 NY3d 1041 [2013]). Whileacknowledging that references to their "private," "privacy" or "bottom" included anotherterm that corresponded to their genital or anal area, both victim A and victim B provideddetailed testimony regarding the multiple incidents in which defendant engaged in analsexual conduct with them. Although defendant contends that the absence of any physicalor other evidence to corroborate these victims' claims of abuse is dispositive, these issueswere fully explored at trial and the jury plainly credited their testimony on this point.Accordingly, we find no basis upon which to disturb defendant's conviction as to the twocounts of course of sexual conduct against a child as to victim A and victim B (see People v Gregory, 78AD3d 1246, 1248 [2010], lv denied 16 NY3d 831 [2011]; People v Stewart, 60 AD3d1111, 1113 [2009], lv denied 12 NY3d 860 [2009]).
We reach a similar conclusion as to the four counts of endangering the welfare of achild with respect to victims A, B, C and D, which required the People to prove, as isrelevant here, that defendant "knowingly act[ed] in a manner likely to be injurious to thephysical, mental or moral welfare" of the victims, each of whom were less than 17 yearsof age (Penal Law § 260.10 [1]). Victim A and victim B testified thatdefendant compelled them to watch pornographic movies, while victim C and victim Dtestified that defendant either allowed them to watch or displayed pornographic moviesin a manner that permitted their viewing. Furthermore, victim A and victim B bothtestified that defendant committed anal sexual conduct against them on multipleoccasions. Crediting the testimony offered by the four victims, as well as the admissionsmade by the mother during her testimony related to owning and watching pornographicmovies with defendant, we are satisfied that the jury's verdict on these four counts is inaccord with the weight of the evidence (see People v Kuykendall, 43 AD3d 493, 495-496 [2007],lv denied 9 NY3d 1007 [2007]; see generally People v Hughes, 114 AD3d 1021, 1022[2014], lv denied 23 NY3d 1038 [2014]).
Defendant next contends that he was deprived of a fair trial as a result of commentsmade by the prosecutor during the People's summation. We do not agree. Our analysis isguided by well-settled parameters that prohibit counsel from serving as a witness,vouching for the credibility of testifying witnesses, commenting upon matters that are notin evidence and engaging in speculation (see People v Ashwal, 39 NY2d 105,109-110 [1976]; People vForbes, 111 AD3d 1154, 1158-1160 [2013]). Although defendant argues thatthe prosecutor impermissibly shifted the burden of proof, the record reflects that, atseveral times throughout the People's summation, the prosecutor reminded the jury thatthe People alone carried the burden of proving defendant's guilt beyond a reasonabledoubt. Similarly, to the extent that the prosecutor sought to bolster the credibility of thefour victims or mentioned matters not in evidence, County Court not only sustained manyof defendant's objections in this regard, but also issued proper and timely curativeinstructions. In light of the foregoing, and to the extent that defendant's various otherclaims of prosecutorial misconduct during the People's summation were properlypreserved for appellate review by specific objections at trial (see People v Fiorino, 130AD3d 1376, 1380 [2015], lv denied 26 NY3d 1087 [2015]), we find that thecumulative effect of the challenged comments was not so prejudicial as to denydefendant his fundamental right to a fair trial (see People v Sposito, 140 AD3d 1308, 1310 [2016]; People v Goldston, 126 AD3d1175, 1179-1181 [2015], lv denied 25 NY3d 1201 [2015]; People vWidmer, 137 AD2d 929, 931 [1988], lv denied 72 NY2d 868 [1988];compare People v Rupnarine, 140 AD3d [*4]1204, 1205-1206 [2016]; People v Gorghan, 13 AD3d908, 910-911 [2004], lv dismissed 4 NY3d 798 [2005]).
Nor do we find merit to defendant's multifaceted ineffective assistance of counselclaim. The record reflects that defense counsel presented appropriate opening and closingstatements, provided an alternate theory as to the source of and/or the basis for thevictims' allegations of abuse and called witnesses who testified on defendant's behalf,effectively cross-examined the People's witnesses and registered appropriateobjections—many of which were sustained and resulted in curativeinstructions—and sought and received an inconsistent statement charge. As such,we are satisfied that defendant received meaningful representation (see People v Adams, 135AD3d 1154, 1156-1158 [2016], lv denied 27 NY3d 990 [2016]; People v Fisher, 126 AD3d1048, 1052 [2015]). Defendant's remaining contentions, including those relative tothe sentence imposed, have been examined and found to be lacking in merit.[FN2]
Garry, J.P., Lynch, Devine and Mulvey, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1:Due to defendant'smultiple periods of incarceration, the People and defendant stipulated that there were"certain definite time periods when the [d]efendant may have had physical access to thesubject children"—specifically, August 10, 2007 through October 9, 2007, April9, 2009 through February 18, 2010 and April 18, 2011 through an undefined date in June2011.
Footnote 2:To the extent thatdefendant contends that he was improperly sentenced as a second violent felonysex offender, the amended sentence and commitment order reflects that he wasproperly sentenced as a second violent felony offender, and it is apparent from a reviewof the sentencing minutes that County Court simply misspoke at the sentencing hearingin using the two statuses interchangeably.