| People v Sprague |
| 2017 NY Slip Op 05347 [151 AD3d 1921] |
| June 30, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v Earl F.Sprague, III, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Nicholas P. Difonzo of counsel), fordefendant-appellant.
Lawrence Friedman, District Attorney, Batavia (William G. Zickl of counsel), forrespondent.
Appeal from a judgment of the Genesee County Court (Robert C. Noonan, J.), renderedJanuary 22, 2014. The appeal was held by this Court by order entered June 17, 2016, decisionwas reserved and the matter was remitted to Genesee County Court for further proceedings (140AD3d 1784). The proceedings were held and completed.
It is hereby ordered that the judgment so appealed from is unanimously modified as a matterof discretion in the interest of justice and on the law by reversing those parts convictingdefendant of sexual abuse in the first degree under counts 2, 5, 13 through 17, and 25 through 28of indictment No. 5548 and dismissing those counts of the indictment, and as modified thejudgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of 28counts of sexual abuse in the first degree (Penal Law § 130.65 [3]) and three countsof criminal contempt in the second degree (§ 215.50 [3]). The charges arose fromallegations that defendant sexually abused two female victims less than 11 years old. Wepreviously remitted this matter to County Court for a ruling on defendant's motion for a trialorder of dismissal (People v Sprague, 140 AD3d 1784 [2016]). Upon remittal, the courtdenied the motion.
With respect to the facts of this case, we note that the grand jury charged defendant byindictment No. 5548 with 28 counts of sexual abuse in the first degree. A bill of particularsprovided that counts 1, 3, 4, 6 through 12, and 18 through 24 were based on allegations thatdefendant touched a victim's vagina, and counts 2, 5, 13 through 17, and 25 through 28 werebased on allegations that defendant had a victim touch his penis. Before trial, the courtconsolidated indictment No. 5548 with two other indictments charging defendant with additionalcrimes. Both victims testified at trial. One victim testified that, on two separate occasions,defendant touched her vagina, and that, on one of those occasions, he had her touch his penis.The other victim testified that, on 15 separate occasions, defendant touched her vagina, and that,on 10 of those occasions, he had her touch his penis.
We agree with defendant that the indictment is multiplicitous because it included separatecounts of sexual abuse in the first degree for incidents in which defendant allegedly touched thevictim's vagina while he had the victim simultaneously touch his penis. Although defendant didnot challenge the indictment on that ground and thus failed to preserve his contention for ourreview (see People v Fulton, 133AD3d 1194, 1194-1195 [2015], lv denied 26 NY3d 1109 [2016], reconsiderationdenied 27 NY3d 997 [2016]), we exercise our discretion to review the contention as a matterof discretion in the interest of justice (see CPL 470.15 [6] [a]).
An indictment is multiplicitous "when a single offense is charged in more than one count"(People v Alonzo, 16 NY3d267, 269 [2011]; see People vCasiano, 117 AD3d 1507, 1509 [2014]). A person commits the criminal offense ofsexual abuse in the first degree when he or she subjects a [*2]person under 11 years old to sexual contact (see Penal Law§ 130.65 [3]). Nevertheless, a defendant may not be charged with separate counts ofsexual abuse in the first degree for each instance of unlawful sexual contact where the instancesof sexual contact constitute "a single, uninterrupted criminal act" (Alonzo, 16 NY3d at270; see People v Kelly, 148 AD3d585, 585 [2017]). Here, for each instance of defendant touching a victim's vagina, defendantwas properly charged with a single and distinct count. By contrast, for each instance of defendantcompelling a victim to touch his penis while defendant was simultaneously touching that victim'svagina, defendant was charged with two separate counts. Charging two separate counts underthose facts was improper inasmuch as the actions alleged in each pair of counts constituted asingle, uninterrupted criminal act. We thus conclude that the indictment was multiplicitous, andwe therefore dismiss counts 2, 5, 13 through 17, and 25 through 28 of indictment No. 5548.
Viewing the evidence in the light most favorable to the People (see People v Contes,60 NY2d 620, 621 [1983]), we conclude that the evidence is legally sufficient to support theconvictions on the remaining counts (see People v Bleakley, 69 NY2d 490, 495 [1987]).We further conclude that, viewing the evidence in light of the elements of the crimes as chargedto the jury (see People v Danielson,9 NY3d 342, 349 [2007]), the verdict is not against the weight of the evidence (seegenerally Bleakley, 69 NY2d at 495). Insofar as defendant contends that he was deniedeffective assistance of counsel, we reject that contention (see generally People v Baldi, 54NY2d 137, 147 [1981]).
Defendant failed to preserve for our review his contention that the court did not provide himwith an opportunity to propose a response to a jury note (see People v Nealon, 26 NY3d 152, 158 [2015]). We rejectdefendant's contention that preservation is not required because the court's handling of the noteconstituted a mode of proceedings error (see generally People v O'Rama, 78 NY2d 270,279 [1991]). "Where, as here, counsel has meaningful notice of a substantive jury note becausethe court has read the precise content of the note into the record in the presence of counsel,defendant, and the jury, the court's failure to discuss the note with counsel before recalling thejury is not a mode of proceedings error. Counsel is required to object to the court's procedure topreserve any such error for appellate review" (Nealon, 26 NY3d at 161-162). The recordestablishes that defendant had meaningful notice of the jury note. Indeed, the jury note wasmerely a clarification of prior jury notes and there is no dispute that defendant had meaningfulnotice of, and an opportunity to propose a response to, the prior jury notes. Moreover, the courtread the subject jury note into the record in the presence of defense counsel, defendant, and thejury (see id.; People v Dame,144 AD3d 1625, 1625 [2016], lv denied 29 NY3d 948 [2017]).
We reject defendant's contention that the court's Molineux ruling constituted an abuseof discretion. The victims' testimony that defendant assaulted their mother was admissible toexplain the victims' delay in reporting the sexual abuse (see People v Nicholson, 26 NY3d 813, 829-830 [2016]; People v Hill, 121 AD3d 469, 469[2014], lv denied 25 NY3d 1165 [2015]; see generally People v Molineux, 168NY 264, 291-294 [1901]). Moreover, the court's detailed written Molineux rulingprecluded testimony about events that the victims did not observe, as well as testimony aboutdefendant's drug use and his encouraging one of the victims to sell drugs, thus demonstrating thatthe court weighed the probative value of all of the proposed evidence against its potential forprejudice (see People v Rivers, 82AD3d 1623, 1623 [2011], lv denied 17 NY3d 904 [2011]).
Finally, the sentence is not unduly harsh or severe. Present—Whalen, P.J., Carni,NeMoyer, Troutman and Scudder, JJ.