| People v Thornton |
| 2016 NY Slip Op 05587 [141 AD3d 936] |
| July 21, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vRichard W. Thornton, Appellant. |
Albert F. Lawrence, Greenfield Center, for appellant.
Alexander Lesyk, Special Prosecutor, Norwood, for respondent.
Devine, J. Appeal from a judgment of the County Court of St. Lawrence County(Richards, J.), rendered August 29, 2012, upon a verdict convicting defendant of thecrimes of predatory sexual assault against a child, course of sexual conduct against achild in the second degree and endangering the welfare of a child (two counts).
Defendant was charged in an indictment with several offenses arising from thealleged sexual abuse of two underage girls over prolonged periods of time, specifically,victim A (born in 1996) from 2002 to 2009 and victim B (born in 1998) from 2008 to2010. Following a jury trial, defendant was convicted of course of sexual conduct againsta child in the second degree and endangering the welfare of a child with regard to victimA. The jury further found him guilty of predatory sexual assault against a child andendangering the welfare of a child with regard to victim B. County Court imposedconcurrent sentences, resulting in an aggregate prison sentence of 14 years to life, inaddition to 10 years of postrelease supervision should defendant be released (seePenal Law § 70.45 [5]). Defendant now appeals.
We affirm. Defendant initially contends, as he did in his trial motion to dismiss, thatthe verdict convicting him of the two felony charges was not supported by legallysufficient evidence given the lack of proof as to when the abuse occurred.[FN*] In that regard, defendantand the victims [*2]resided together throughout theperiod of the abuse. The trial testimony established where they resided and, as is relevanthere, they lived in a brown house from 2005 to 2008 and, after several weeks in campers,moved into a newly built home in 2008. Victim A testified that, during a swimmingouting in 2002 when she was six years old, defendant placed her on his knee and insertedhis finger into her vagina. She promptly disclosed that incident to relatives, a pointconfirmed by one of those relatives (see People v Rosario, 17 NY3d 501, 511-513 [2011]; People v Fournier, 137 AD3d1318, 1320 [2016]). The abuse resumed when victim A was 11 years old and livingin the brown house, limiting the period to 2007 or early 2008, when defendant enteredher bedroom and inserted his finger into her vagina. Victim A then detailed twoadditional incidents, a summer 2008 incident when defendant engaged in the sameconduct in the camper and another where he attempted to molest her in the newly builtresidence. When viewed in the light most favorable to the People, this testimonyconstituted legally sufficient proof for a rational juror to find that, "over a period of timenot less than three months in duration . . . [defendant], being [18] years oldor more, engage[d] in two or more acts of sexual conduct with a child less than [13]years old" so as to support a conviction on the charge of course of sexual conduct againsta child in the second degree (Penal Law § 130.80 [1] [b]; see PenalLaw § 130.00 [3], [10]; see e.g. People v Santiago, 118 AD3d 1163, 1164-1165[2014], lv denied 24 NY3d 964 [2014]).
As for victim B, she testified that, while in the brown house, defendant beganfondling her breasts, buttocks and vagina over her clothing, he progressed to fondlingunder her clothing, and that such abuse was a regular occurrence. She further testifiedthat defendant began having anal sex with her not long after moving into the newly builtresidence in 2008—a point inferable from her recollection that it first occurredthere when she was nine or 10 years old—and that they had anal sex every week orso until shortly before she disclosed the abuse to family members in 2010. Sheadditionally testified to at least one incident where defendant subjected her to vaginalsex. A rational juror could readily find from this proof that defendant, "over a period oftime not less than three months in duration . . . [and] being [18] years old ormore, engage[d] in two or more acts of sexual conduct, which include at least one act ofsexual intercourse . . . [or] anal sexual conduct . . . with a childless than [13] years old" (Penal Law § 130.75 [1] [b]; see Penal Law§ 130.00 [1], [2] [b]; [10]). Legally sufficient proof therefore existed to finddefendant guilty of predatory sexual assault against a child (see Penal Law§ 130.96; People vSorrell, 108 AD3d 787, 788-789 [2013], lv denied 23 NY3d 1025[2014]; People v Lupo, 92AD3d 1136, 1137 [2012]).
Defendant further asserts that the verdict was against the weight of the evidence."[W]hile an acquittal 'would not have been unreasonable[,] . . . the jury wasjustified in finding [him] guilty beyond a reasonable doubt' " (People v Monroe, 134 AD3d1138, 1140 [2015], quoting People v Danielson, 9 NY3d 342, 348 [2007]). There wereinconsistencies between the young victims' pretrial accounts of their ordeal and their trialtestimony, but those inconsistencies were fully explored during the cross-examination ofthe victims and do "not justify reversing a guilty verdict as against the weight of theevidence" (People v Monroe, 134 AD3d at 1140; see [*3]People v Fournier, 137 AD3d at 1320). A nurse whowas trained to conduct sexual assault examinations testified that she performedexaminations of both victims and the findings of those examinations were more likelythan not to have been caused by sexual abuse. A physician called by defendant disagreedwith the nurse, but the People subjected him to a blistering cross-examination that left hiscredibility in serious question. The jury chose to credit the testimony of the victims andother corroborating proof and, after according deference to that determination andweighing the conflicting proof ourselves, we cannot say that the ensuing verdict wasagainst the weight of the evidence (see People v Fournier, 137 AD3d at 1320;People v Monroe, 134 AD3d at 1140).
Defendant next contends that the People failed in their Brady obligation toturn over information regarding the investigation of the 2002 incident of abuse reportedby victim A. The record reflects that victim A's relatives reported that allegation to childprotective officials, who did investigate the report of abuse and deemed it to be"unfounded." The report was accordingly sealed and, while a copy could thereafter beobtained as part of a law enforcement investigation into whether an intentionally falseclaim of abuse had been made, there is nothing to suggest that such an investigationoccurred or that the People otherwise came into possession of the report (seeSocial Services Law § 422 [5] [a] [v]; [14]). Defendant was capable ofobtaining the information in the unfounded report on his own (see SocialServices Law § 422 [5] [a] [iv]; [7]) and, inasmuch as the People cannot befaulted for failing to turn over material outside of their "custody, possession, or control,"there was no Brady violation (People v Garrett, 23 NY3d 878, 886 [2014]; see People v Terry, 19 AD3d1039, 1039-1040 [2005], lv denied 5 NY3d 833 [2005]).
Defendant lastly asserts that his aggregate sentence was harsh and excessive.Predatory sexual assault against a child is a class A-II felony sex offense for which theminimum indeterminate sentence is 10 years to life in prison (see Penal Law§§ 70.00 [2] [a]; [3] [a] [ii]; 70.80 [3]; 130.96). The imposed sentenceof 14 years to life in prison on that conviction was only modestly above the statutoryminimum and, considering the acts for which defendant was convicted, we perceive noabuse of discretion or extraordinary circumstances that would warrant its reduction.
Peters, P.J., McCarthy, Egan Jr. and Lynch, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:Defendant argued at trialthat, while the victims' ages were established at trial, the requisite proof as to his age waslacking (see Penal Law §§ 130.75 [1] [b]; 130.80 [1] [b];130.96). Inasmuch as the jury was aware that defendant had fathered a child before theoffenses, was married in 2004 and had the opportunity to observe defendant at trial, therewas indeed "a legally sufficient basis for the jury to find that defendant was at least 18years old at the time of the offense[s]" (People v Kittles, 23 AD3d 775, 775-776 [2005], lvdenied 6 NY3d 755 [2005]).