| People v St. Pierre |
| 2016 NY Slip Op 05596 [141 AD3d 958] |
| July 21, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vJeremy St. Pierre, Appellant. |
Cynthia Feathers, Glens Falls, for appellant, and appellant pro se.
Kathleen B. Hogan, District Attorney, Lake George (Emilee B. Davenport ofcounsel), for respondent.
Egan Jr., J. Appeal from a judgment of the Supreme Court (Lawliss, J.), renderedNovember 5, 2014 in Clinton County, convicting defendant following a nonjury trial ofthe crimes of predatory sexual assault against a child, criminal facilitation in the thirddegree and endangering the welfare of a child (two counts).
In February 2014, defendant was indicted and charged with predatory sexual assaultagainst a child (two counts), criminal facilitation in the third degree and endangering thewelfare of a child (two counts). The charges stemmed from allegations that, between theend of July 2010 and the end of October 2010, defendant sexually abused victim A (bornin 1997) and victim B (born in 1999). During that time period, the two victims, who arebrothers, resided in defendant's household. Defendant waived his right to a jury trial and,at the conclusion of the bench trial that followed, defendant was acquitted of the firstcount of predatory sexual assault against a child and otherwise was convicted as charged.County Court thereafter sentenced defendant to, among other things, a prison term of 25years to life upon defendant's conviction of predatory sexual assault against a child. Thisappeal ensued.
We affirm. Preliminarily, to the extent that defendant argues that the verdict is notsupported by legally sufficient evidence, this issue is unpreserved for our review. Thatsaid, "our weight of the evidence review necessarily involves an evaluation of whetherall elements of the charged crimes were proven beyond a reasonable doubt at trial" (People v Wilkerson, 140 AD3d1297, 1301 [2016] [internal quotation marks, brackets and citations omitted]).Insofar as is relevant here, "[a] person is guilty of predatory sexual assault against a [*2]child when, being [18] years old or more, he or shecommits the crime of . . . criminal sexual act in the first degree. . . and the victim is less than [13] years old" (Penal Law§ 130.96; seePeople v Fournier, 137 AD3d 1318, 1319 [2016]). With respect to theunderlying crime, "[a] person is guilty of criminal sexual act in the first degree when heor she engages in oral sexual conduct . . . with another person. . . [w]ho is less than [13] years old and the actor is [18] years old or more"(Penal Law § 130.50 [4]). Further, "[a] person [is] guilty of criminalfacilitation in the third degree, when believing it [is] probable that he [or she] isrendering aid to a person under [16] years of age who intends to engage in conduct thatwould constitute a felony, he [or she], being over [18] years of age, engages in conductwhich provides such person with means or opportunity for the commission thereof andwhich in fact aids such person to commit a felony" (Penal Law § 115.01).As set forth in the underlying indictment, the crime that defendant allegedly facilitatedwas incest in the third degree, which, as relevant here, required proof of "sexualintercourse, oral sexual conduct or anal sexual conduct with a person whom [the actor]knows to be related to him or her . . . [including a] brother or sister of eitherthe whole or the half blood" (Penal Law § 255.25). Finally, "[a] person isguilty of endangering the welfare of a child when . . . [h]e or she knowinglyacts in a manner likely to be injurious to the physical, mental or moral welfare of a childless than [17] years old" (Penal Law § 260.10 [1]).
Here, victim B testified that, at some point between July 2010 and October 2010,defendant (born in 1975) made victim B (then 10 years old) perform oral sex on him inthe living room of the residence that they shared. Victim B's testimony on this point wascorroborated by victim A (then 13 years old), who witnessed this incident and offered adetailed account thereof. Victim B also testified that defendant subjected him to anal sexon one occasion during the summer of 2010 and that this incident took place inside of afamily camper that was parked at the residence that the victims shared with defendant inClinton County. Additionally, both victim A and victim B testified that, during this sametime period, defendant compelled victim A to have anal sex with victim B on more thanone occasion and described defendant's efforts to facilitate these encounters, whichincluded providing or offering advice on lubricants and showing victim A "the way itwas to be done." Finally, both boys testified that defendant showed them Internetpornography at various points during the summer of 2010. According to a State Policeinvestigator who interviewed defendant following his arrest, defendant denied havingsex with the boys but admitted to showing them "straight porn" for what defendantapparently regarded as instructional purposes.
After assessing the foregoing testimony, County Court found defendant not guilty ofthe first count of the indictment charging him with predatory sexual assault against achild with respect to the incident in the camper—apparently crediting certaintestimony offered on behalf of defendant that the camper in question was parked inVermont at the time that the underlying incident allegedly occurred in ClintonCounty—and found defendant guilty of the remaining charges. Upon appeal,defendant contends that his conviction is against the weight of theevidence—primarily arguing that the boys' testimony is unworthy of belief. Wedisagree.
To be sure, both boys have certain developmental delays and, according to themother, victim B twice was hospitalized for attempting to hurt—or expressing adesire to injure—a younger sibling in 2010 and 2011. Additionally, both boyspreviously had been sexually abused by a member of the mother's family—withthe bulk of that abuse directed toward victim A. Although the boys testified before agrand jury with respect to this family member's abuse in August 2010 and regularly metwith the Assistant District Attorney (hereinafter ADA) prosecuting that matter, neither ofthe boys told the ADA—or the counselors that they then were seeing—thatdefendant also had abused them. Indeed, even after the ADA "became suspicious thatthere might be something going on between" victim A and victim B and "tricked [victimB] [*3]into disclosing that his brother had had sex withhim," the boys made no mention of defendant's involvement until August 2013 whendefendant accused them of engaging in sexual activity with one another. Once soconfronted, the boys initially denied engaging in sex with one another and continued toinsist at trial that they did not have sex with one another after 2010—despitephysical evidence of recent anal trauma to victim B and victim B's testimony that he sawa doctor in the years following defendant's abuse due to ongoing difficulties indefecating and the presence of blood in his stool. Such testimony, defendant insists,suggests that the boys were less than truthful regarding their post-2010 sexual activitieswith one another and, therefore, their testimony as to the sexual abuse perpetrated bydefendant necessarily is equally suspect.
Despite defendant's protestations, the fact remains that County Court, which hadample opportunity to view the boys' testimony firsthand and assess their credibility anddemeanor, was well aware of their developmental delays, their prior history as victims ofsexual abuse, their delay in reporting the abuse perpetrated by defendant and their initialdenials of ongoing sexual activity with one another and chose to credit the boys'testimony as to four of the five counts charged in the indictment. Indeed, County Court'scareful weighing of the boys' testimony is evidenced by the fact that County Court chosenot to credit their testimony as to the incident in the camper but otherwise found suchtestimony to be worthy of belief. In this regard, County Court was free to credit portionsof the victims' testimony while rejecting other aspects thereof (cf. People v Fancher, 116AD3d 1084, 1087 [2014]). Notably, "the appropriate standard for evaluating aweight of the evidence argument on appeal is the same regardless of whether the finderof fact was a judge or a jury because those who see and hear the witnesses can assesstheir credibility and reliability in a manner that is far superior to that of reviewing judgeswho must rely on the printed record" (People v Lane, 7 NY3d 888, 890 [2006] [internal citationomitted]). Applying that standard to the testimony in this case, we find the verdict to bein accord with the weight of the evidence.
The remaining arguments, including those raised in defendant's pro se brief, do notwarrant extended discussion. Although defendant claims that he was denied the effectiveassistance of counsel due to trial counsel's failure to challenge the two counts of theindictment charging him with endangering the welfare of a child as time-barred, wedisagree. "Given that a conviction of some kind after trial was not unlikely in the face ofthe children's account of events, counsel had a sound basis to give [County Court] anopportunity to convict defendant of a misdemeanor rather than a felony" (People v Ambers, 26 NY3d313, 320 [2015]). As we are otherwise satisfied that defendant received meaningfulrepresentation, his ineffective assistance of counsel claim must fail. To the extent thatdefendant contends that the verdict was repugnant because he was acquitted on count oneof the indictment but convicted on count two of the indictment, both of which chargedhim with predatory sexual assault against a child, this issue is unpreserved for our reviewand, in any event, is lacking in merit. As noted previously, these two counts involveddistinctly separate incidents—one of alleged anal sexual conduct in the familycamper (the count upon which defendant was acquitted) and the other involving oralsexual conduct in the living room of the residence that defendant shared with, amongothers, victim B (the count upon which defendant was convicted). Finally, defendant'sclaims of prosecutorial misconduct in the form of leading questions and impermissiblebolstering are unpreserved for our review, and his challenge to the perceived severity ofthe sentence imposed is lacking in merit. Accordingly, the judgment of conviction isaffirmed.
Peters, P.J., Lahtinen, Rose and Clark, JJ., concur. Ordered that the judgment isaffirmed.