| People v Garcia |
| 2016 NY Slip Op 05519 [141 AD3d 861] |
| July 14, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vAngel Garcia, Appellant. |
Matthew C. Hug, Albany, for appellant.
P. David Soares, District Attorney, Albany (Michael C. Wetmore of counsel), forrespondent.
Clark, J. Appeal from a judgment of the County Court of Albany County (Herrick,J.), rendered September 17, 2014, upon a verdict convicting defendant of the crime ofsexual abuse in the first degree (two counts).
In 2013, defendant was charged in a superseding indictment with two counts ofsexual abuse in the first degree based upon his sexual contact with the victim (born in1997) "on an unknown date on or about and between May 1, 2003 and October 1, 2003."The victim disclosed the abuse to law enforcement in 2012 at the age of 15. Upondefendant's discovery demands and request for a bill of particulars, including a requestfor further specification as to the date and time of the alleged crimes, the People statedthat the conduct constituting both counts of sexual abuse in the first degree occurred onthe same date during the "daytime hours," but that the victim could not recall the precisedate on which the abuse occurred. County Court denied defendant's subsequent motion todismiss the superseding indictment on the basis that, among other things, the timeinterval alleged was overly broad. Following a jury trial, defendant was convicted ascharged and sentenced to two concurrent prison terms of five years, followed by 10 yearsof postrelease supervision. Defendant appeals.
Defendant contends that the verdict was against the weight of the evidence. Where,as here, a different verdict would not have been unreasonable, we "must, like the trier offact below, weigh the relative probative force of conflicting testimony and the relativestrength of conflicting inferences that may be drawn from the testimony" (People v Romero, 7 NY3d633, 643 [2006][*2][internal quotation marks andcitations omitted]; see People vColvin, 37 AD3d 856, 857 [2007], lv denied 8 NY3d 944 [2007]). Here,the victim testified in detail about the circumstances surrounding the sexual contact towhich defendant—her godfather—subjected her when she was six yearsold. In particular, the victim stated that she went to defendant's apartment to deliver foodfrom her mother and to ask if defendant's granddaughter was available to play. Sheasserted that, while she was waiting in the living room, defendant came up behind herand began touching her vagina and, a few minutes later, grabbed her arm and brought herto the bedroom, where he placed her on the bed and again touched her vagina. Whiledefendant asserts that the veracity of the victim's account was undermined by her priorinconsistent statements, as well as her parents' application for a U-Visa based on herstatus as a crime victim, such matters were explored on cross-examination and presentedcredibility issues for the jury (see People v Thiel, 134 AD3d 1237, 1239 [2015]; People v Fernandez, 106 AD3d1281, 1285 [2013]). Viewing the evidence in a neutral light and according duedeference to the jury's factual and credibility determinations, we are satisfied that theverdict was supported by the weight of the evidence (see People v Brown, 114 AD3d 1017, 1018-1019 [2014];People v Galloway, 93AD3d 1069, 1071 [2012], lv denied 19 NY3d 996 [2012]).
Defendant also argues that the five-month period alleged in the supersedingindictment deprived him of the ability to adequately prepare a defense and that thePeople did not allege the most particular time frame possible. "When time is not anessential element of an offense, the indictment, as supplemented by a bill of particulars,may allege the time in approximate terms[, so long as it] set[s] forth a time interval whichreasonably serves the function of protecting [the] defendant's constitutional right to beinformed of the nature and cause of the accusation" (People v Watt, 81 NY2d772, 774 [1993] [internal quotation marks and citations omitted]; accord People v Porlier, 55AD3d 1059, 1060 [2008]). "Reasonableness and fairness demand that the indictmentstate the date and time of the offense to the best of the People's knowledge, after areasonably thorough investigation has been undertaken to ascertain such information"(People v Morris, 61 NY2d 290, 296 [1984]; see People v Jabot, 93 AD3d 1079, 1080 [2012]). Inassessing whether a more precise date could have been ascertained through diligentefforts, we may consider the age and intelligence of the victim, the relevantcircumstances and "the nature of the offense, including whether it is likely to occur at aspecific time or is likely to be discovered immediately" (People v Morris, 61NY2d at 296; see People v Watt, 81 NY2d at 774-775). If we conclude that thePeople made diligent efforts, we then determine whether the time period alleged wasreasonable by considering, among other factors, the ability of the victim to particularizethe date of the offense and the passage of time between the alleged offense and thedefendant's arrest and/or the date of the indictment (see People v Morris, 61NY2d at 296).
Defendant failed to demonstrate that the People were aware of and disregarded anarrower time frame, and we are unpersuaded that they failed to make diligent efforts toascertain the most precise time period. While the victim testified at trial that the abusetook place two weeks before her sister's birthday in July and that she had told theprosecutor this, the prosecutor stated, outside the presence of the jury, that the victim hadnever before discussed the date of the abuse with such specificity. The prosecutorasserted that, notwithstanding extensive questioning aimed at narrowing the time frame,the victim was previously only able to recall that her younger sister was crawling andlearning to walk and that she was wearing shorts and flip flops at the time of theoffenses. County Court credited the prosecutor's statement that the victim had neverbefore given a two-week time frame, noting that the victim had made inconsistentstatements regarding the time period. It is not implausible that the victim initially haddifficulty recalling the date of the offenses, given that she was six years old at the time,did not disclose the abuse until roughly eight years later and, by her own account, hadspent those eight years trying to suppress her memories of the incident. Her disclosurecame only after defendant approached and [*3]apologized to her for what he had done. Additionally,defendant lived in the same apartment building as the victim and was a close familyfriend and, therefore, had regular access to the victim. Under all of these circumstances,including the nature of the offenses, the five-month period alleged in the supersedingindictment was reasonable (see People v Watt, 84 NY2d 948, 950-951 [1994]; People v Griswold, 95 AD3d1454, 1455 [2012], lv denied 19 NY3d 997 [2012]; People v Oglesby, 12 AD3d857, 859 [2004], lv denied 5 NY3d 792 [2005]). Moreover, inasmuch "as hisdefense was a categorical denial of any abuse or sexual contact," the People's inability topinpoint a more precise time period prior to trial did not deprive defendant of the abilityto prepare a defense (People v Porlier, 55 AD3d at 1060; see People vWatt, 84 NY2d at 951).
Defendant argues that County Court abused its discretion in denying his request tocall the prosecutor as a witness to testify that the victim had never before stated that theabuse occurred two weeks before her sister's birthday or his alternative request for anadverse inference charge. The determination to permit a defendant "to call the prosecutoras a witness rests in the sound discretion of the trial court" (People v Paperno, 54NY2d 294, 302-303 [1981]; see People v Sharpe, 167 AD2d 296, 297 [1990],lv denied 77 NY2d 911 [1991]). Here, as defense counsel had an ampleopportunity to cross-examine the victim as to her prior inconsistent statements relating tothe time frame and was able to attack the credibility of the victim through suchcross-examination, County Court did not abuse its discretion in denying defendant'srequests (see People vDiTucci, 81 AD3d 1249, 1250 [2011], lv denied 17 NY3d 794 [2011];People v Smith, 262 AD2d 77, 78 [1999], lv denied 93 NY2d 1027[1999]; People v Sharpe, 167 AD2d at 297).
We further disagree with defendant's assertion that the second count of sexual abusein the first degree should be dismissed as multiplicitous. The two instances of sexualcontact occurred in separate rooms in defendant's home and the second instance occurredafter "a few minutes" had passed. Thus, as defendant's conduct did not constitute asingle, uninterrupted occurrence of sexual contact, the indictment was not multiplicitous(see People v Grosso, 281 AD2d 986, 988 [2001], lv denied 96 NY2d800 [2001]; compare People vAlonzo, 16 NY3d 267, 270 [2011]).
Finally, the sentence imposed upon defendant, which was less than the maximumpermissible term (see Penal Law § 70.80 [4] [a] [iii]), was not harshor excessive and, in the absence of an abuse of discretion or the existence ofextraordinary circumstances warranting a reduction, we decline to disturb it (see People v Cook, 112 AD3d1065, 1066 [2013]; People v Lemke, 58 AD3d 1078, 1080 [2009];People v Shook, 294 AD2d 710, 713-714 [2002], lv denied 98 NY2d 702[2002]). Defendant's remaining contentions, including his challenges to certainevidentiary rulings made by County Court, have been examined and found to be lackingin merit.
McCarthy, J.P., Rose, Devine and Aarons, JJ., concur. Ordered that the judgment isaffirmed, and matter remitted to the County Court of Albany County for furtherproceedings pursuant to CPL 460.50 (5).