| People v St. Ives |
| 2016 NY Slip Op 08256 [145 AD3d 1185] |
| December 8, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vRobert C. St. Ives, Appellant. |
Samuel D. Castellino, Big Flats, for appellant.
P. David Soares, District Attorney, Albany (Brittany L. Grome of counsel), forrespondent.
Peters, P.J. Appeal from a judgment of the County Court of Broome County (Smith,J.), rendered January 29, 2014, upon a verdict convicting defendant of the crime ofpredatory sexual assault against a child.
Defendant was charged in an eight-count indictment with various crimes based uponhis alleged sexual abuse of multiple victims. After his first trial ended in a mistrial andseveral counts of the indictment were dismissed for reasons not relevant here, defendantwas retried on counts 1, 2, 5 and 7. Counts 1 and 2, each charging defendant with thecrime of predatory sexual assault against a child, stem from allegations that he sexuallyabused victim A (born in 1998) and her friend, victim B (born in 1997), between the fallof 2008 and November 2010. Counts 5 and 7 charged defendant with the crimes of rapein the first degree and criminal sexual act in the first degree based upon conduct towardsa third victim in 1999. County Court denied defendant's motion to sever counts 1 and 2from counts 5 and 7. Following a jury trial, defendant was convicted of predatory sexualassault against a child pertaining to victim A and acquitted of the remaining charges.County Court denied defendant's subsequent motion to set aside the verdict andsentenced him to a prison term of 15 years to life. He appeals.
County Court did not abuse its discretion when it denied defendant's motion forseverance. Although counts 5 and 7 were based upon incidents that occurred severalyears earlier than the conduct charged in counts 1 and 2, the charges were statutorilyjoinable as offenses "defined by the same or similar statutory provisions andconsequently are the same or similar in law" (CPL 200.20 [2] [c]; see People v Hunt, 39 AD3d961, 962 [2007], lv denied 9 NY3d 845 [2007]; People v Nickel, 14 AD3d869, 870 [2005], lv denied 4 NY3d 834 [2005]). Since the offenses wereproperly joined, the decision whether to sever the counts for separate trials wascommitted to the sound discretion of the trial court (see People v Mahboubian, 74NY2d 174, 183 [1989]; Peoplev Lakatosz, 59 AD3d 813, 815 [2009], lv denied 12 NY3d 917 [2009]).Such discretion was not abused here. The proof concerning the relevant charges was"separately presented, uncomplicated and easily distinguishable" (People v Kelly,270 AD2d 511, 512 [2000], lv denied 95 NY2d 854 [2000]; accord People v Milford, 118AD3d 1166, 1168 [2014], lv denied 23 NY3d 1065 [2014]; People vNickel, 14 AD3d at 870), and County Court gave appropriate instructions to the jurythat distinguished between the charges pertaining to each victim (see People vLakatosz, 59 AD3d at 815; People v Hunt, 39 AD3d at 962; People vMonte, 302 AD2d 687, 688 [2003]). Moreover, the fact that the jury founddefendant not guilty of the crimes charged in counts 5 and 7 indicates that it separatelyconsidered and evaluated the evidence as to each victim (see People v Milford,118 AD3d at 1171; People v Nickel, 14 AD3d at 870; People v Monte,302 AD2d at 688; People v Boyea, 222 AD2d 937, 939 [1995], lv denied88 NY2d 934 [1996]).
Nor are we persuaded that the verdict is contrary to the weight of the evidence.Insofar as is relevant here, "[a] person is guilty of predatory sexual assault against a childwhen, being eighteen years old or more, he or she commits the crime of . . .course of sexual conduct against a child in the first degree . . . and thevictim is less than thirteen years old" (Penal Law § 130.96). The crime ofcourse of sexual conduct against a child in the first degree, in turn, requires proof that,over a period of time not less than three months, defendant "engage[d] in two or moreacts of sexual conduct, which include[d] at least one act of sexual intercourse [or] oralsexual conduct . . . with a child less than thirteen years old" (Penal Law§ 130.75 [1] [b]).
At trial, victim A recounted ongoing sexual abuse perpetrated against her bydefendant beginning in the fall of 2008, when she was 10 years old and first came to livewith defendant and his family, and continuing until she moved out of the residence inNovember 2010. She explained that the abuse initially consisted of groping her buttocksand "front private part" and quickly progressed to defendant subjecting her to oral sexand engaging her in sexual intercourse. She testified further that defendant penetrated hervagina with a pink "dildo" on more than one occasion, and subsequent forensic testing ofthat device revealed victim A to be the major contributor of the DNA recoveredtherefrom. Victim A provided numerous and specific details of the abuse she wassubjected to by defendant, explaining that such abuse primarily occurred on Saturdaymornings when defendant's son and wife were undisputedly out of the house. Hertestimony was also corroborated in part by victim B, who regularly came to the home tovisit with victim A beginning in the fall of 2009. Victim B testified that, while atdefendant's residence, she witnessed episodes in which defendant engaged victim A insexual contact, including oral and vaginal sex, and claimed that she too was victimizedby defendant on several occasions. Such abuse was ultimately disclosed by victim B to aschool counselor in November 2010. Although victim A initially denied that defendanthad engaged in any sexual contact with her, she explained that her hesitancy to reveal theabuse was a product of defendant's threats to send her back to foster care if she toldanyone.
Defendant testified on his own behalf, denying that any of the alleged sexual contacthad occurred and offering an explanation for victim A's motivation to fabricate theallegations against him. Such testimony presented "a classic credibility issue" for the juryto resolve (People vCridelle, 112 AD3d 1141, 1143 [2013] [internal quotation marks and citationsomitted]; see People vBrabham, 126 AD3d 1040, 1043 [2015], lv denied 25 NY3d 1160[2015]; People v Moyer, 75AD3d 1004, 1006 [2010]) and, by its verdict, the jury plainly elected to credit victimA's version of the events. On this record, we find no basis upon which to disturb thatassessment. The claimed inconsistencies within victim A's trial testimony, as well asbetween her testimony and the testimony of victim B, her admitted lack of veracity onprior occasions and her mental health history were all fully explored during the trial and"neither undermined her testimony in any meaningful respect nor rendered her testimonyincredible as a matter of law" (People v Brown, 114 AD3d 1017, 1018-1019 [2014][internal quotation marks, brackets and citations omitted]; see People v Peart, 141 AD3d939, 941 [2016]; People vGarcia, 141 AD3d 861, 863 [2016], lv denied 28 NY3d 929 [2016]; People v Fernandez, 106 AD3d1281, 1285-1286 [2013]; People v Simonetta, 94 AD3d 1242, 1244 [2012], lvdenied 19 NY3d 1029 [2012]; People v Littebrant, 55 AD3d 1151, 1155 [2008], lvdenied 12 NY3d 818 [2009]). As noted, aspects of victim A's account were in factsupported by the testimony of other witnesses, including victim B,[FN*] as well as the DNAevidence recovered from the device purportedly used during some of the sexual abuse.Although the sexual assault nurse examiner who conducted an examination of victim Afound no apparent injuries or signs of sexual abuse, she explained that the lack of suchphysical evidence is not uncommon in cases of sexual assault and, to the extent thatdefendant presented evidence to the contrary, this too presented a credibility issue for thejury to resolve (see People vFarnham, 136 AD3d 1215, 1217 [2016], lv denied 28 NY3d 929 [2016];People v Brown, 114 AD3d at 1018; People v Fernandez, 106 AD3d at1282-1283). Viewing the evidence in a neutral light and giving due deference to thejury's credibility assessments, we find the verdict to be in accord with the weight of theevidence (see People vAdams, 135 AD3d 1154, 1155 [2016], lv denied 27 NY3d 990 [2016];People v Simonetta, 94 AD3d at 1244; People v Beauharnois, 64 AD3d 996, 998-999 [2009],lv denied 13 NY3d 834 [2009]).
Finally, we find no merit to defendant's claim that his sentence, which is well withinthe permissible statutory range (see Penal Law §§ 70.00 [2][a]; [3] [a] [ii]; 70.80 [3]; 130.96), was harsh or excessive. Given the protracted anddeplorable nature of defendant's crimes against victim A, his exploitation of the positionof trust that he held over this young child and his failure to accept responsibility orexpress remorse for his actions, we find no abuse of discretion or extraordinarycircumstances warranting a reduction of the sentence in the interest of justice (see People v Thornton, 141AD3d 936, 939 [2016]; People v Adams, 135 AD3d at 1158; People v Brown, 128 AD3d1183, 1189 [2015], lv denied 27 NY3d 993 [2016]; People v Hughes, 114 AD3d1021, 1025 [2014], lv denied 23 NY3d 1038 [2014]).
Garry, Egan Jr., Rose and Mulvey, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:While the jury's verdictacquitting defendant of the course of sexual conduct charge pertaining to victim Breflects its lack of certainty concerning victim B's testimony that she was sexually abusedby defendant, "the jury was entitled to credit some of her testimony while discountingother aspects" (People vKuykendall, 43 AD3d 493, 495 [2007], lv denied 9 NY3d 1007 [2007];see People v St. Pierre, 141AD3d 958, 961 [2016]; People v Beliard, 101 AD3d 1236, 1239 [2012], lvdenied 20 NY3d 1096 [2013]; People v Hoppe, 96 AD3d 1157, 1159 [2012], lvdenied 19 NY3d 1026 [2012]).