| People v Sturges |
| 2018 NY Slip Op 05703 [164 AD3d 616] |
| August 8, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Appellant, v Thomas Sturges, Respondent. |
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Ann Bordley, and LoriGlachman of counsel), for appellant.
Carla Sanderson, New York, NY, for respondent.
Appeal by the People from (1) an order of the Supreme Court, Kings County (RaymondGuzman, J.), dated February 11, 2016, which granted the defendant's motion pursuant to CPL330.30 to set aside his conviction of endangering the welfare of a child, and dismissed theindictment in its entirety, and (2) so much of an order of the same court dated May 27, 2016, as,in effect, upon reargument, adhered to the original determination in the order dated February 11,2016.
Ordered that the appeal from the order dated February 11, 2016, is dismissed, as that orderwas superseded by the order dated May 27, 2016; and it is further,
Ordered that the order dated May 27, 2016, is reversed insofar as appealed from, on the law,upon reargument, the order dated February 11, 2016, is vacated, the defendant's motion to setaside his conviction of endangering the welfare of a child is denied, the indictment and theverdict are reinstated, and the matter is remitted to the Supreme Court, Kings County, for furtherproceedings consistent herewith.
The defendant was charged with various offenses, based on certain sexual acts allegedlyperpetrated by him against the 10-year-old complainant. The Supreme Court submitted 27 countsto the jury: 1 count of criminal sexual act in the first degree (Penal Law § 130.50[3]) regarding an alleged act of oral sexual conduct on or about and between July 2, 2013, andAugust 13, 2013; 25 counts of sexual abuse in the first degree (Penal Law § 130.65[3]), one for each day the defendant was alleged to have sexually abused the complainant; and 1count of endangering the welfare of a child (Penal Law § 260.10 [1]) alleged tohave occurred on or about and between July 2, 2013, and August 13, 2013. The jury convictedthe defendant of endangering the welfare of a child and acquitted him of all other charges.
Subsequently, the defendant moved pursuant to CPL 330.30 (1) to set aside his conviction ofendangering the welfare of a child, arguing that the prosecutor made improper remarks duringsummation, and that the evidence was legally insufficient to support his conviction. The SupremeCourt did not rule on the issue of the prosecutor's alleged misconduct. On appeal, the [*2]defendant does not raise any arguments regarding prosecutorialmisconduct, and any such argument would be unreviewable on this appeal in any event (seePeople v LaFontaine, 92 NY2d 470, 474 [1998]). Accordingly, we do not consider the issueof prosecutorial misconduct on this appeal. The court granted the defendant's motion on theground that the evidence was legally insufficient to support his conviction. It reasoned that, sincethe jury acquitted the defendant of the charges of criminal sexual act and sexual abuse, and therewas no evidence of any other conduct that could support a conviction of endangering the welfareof a child, the verdict of guilty was based on legally insufficient evidence. The People moved forleave to reargue their opposition to the defendant's motion. In an order dated May 27, 2016, thecourt, in effect, upon reargument, adhered to its original determination. The People appeal.
Although the Supreme Court, in the order dated May 27, 2016, purportedly deniedreargument, it did in fact reconsider the defendant's CPL 330.30 motion in light of case law citedby the People. Thus, the court, in effect, granted reargument, but adhered to its originaldetermination. As such, an appeal properly lies from that order (see People v Sadowski,173 AD2d 873, 873 [1991]).
The Supreme Court erred in setting aside the defendant's conviction of endangering thewelfare of a child on the ground that it was based on legally insufficient evidence because thejury acquitted him of the other counts alleging criminal sexual act in the first degree and sexualabuse in the first degree. The Court of Appeals has held that a factual inconsistency in the verdictdoes not render "the record evidence legally insufficient to support the conviction" (People v Abraham, 22 NY3d 140,147 [2013]). "Where a jury verdict is not repugnant, it is imprudent to speculate concerning thefactual determinations that underlay the verdict because what might appear to be an irrationalverdict may actually constitute a jury's permissible exercise of mercy or leniency" (People vHorne, 97 NY2d 404, 413 [2002] [footnote omitted], citing People v Rayam, 94NY2d 557 [2000]; see People vEkwegbalu, 131 AD3d 982, 983 [2015]). Thus, in this case, the acquittals of thecriminal sexual act and sexual abuse counts did not render the evidence legally insufficient tosupport the conviction of endangering the welfare of a child (see People v Abraham, 22NY3d at 147).
Although the Court of Appeals has noted that reviewing courts may consider jury acquittals"in some instances on legal issues such as the sufficiency of the evidence or errors in theadmissibility of evidence" (People v Rayam, 94 NY2d 557, 563 n [2000] [citationsomitted]; see People v Abraham, 22 NY3d at 146-147), such consideration is appropriateto the extent that the acquittal provides information about the basis of, or the theory underlying,the jury's finding of guilt on another count (see People v Yarrell, 75 NY2d 828 [1990],revg for reasons stated by dissent 146 AD2d 819 [1989]; People v Osorio, 75NY2d 80, 86 [1989]). With this understanding of the basis or theory of the conviction on thatother count, the court may then determine whether there was legally sufficient evidence tosupport that conviction (see People v Yarrell, 75 NY2d 828 [1990]). That determinationis based on an independent review of the evidence presented at trial, and is not controlled by thejury's acquittal on the other charge (see People v Abraham, 22 NY3d at 147 ["an acquittalis not a preclusive finding of any fact, in the same trial, that could have underlain the jury'sdetermination"]).
To the extent that the defendant's motion could be construed as asserting a claim that theverdict was repugnant as a matter of law, that claim was not preserved for appellate review, andtherefore could not be considered on a motion pursuant to CPL 330.30, since it did not present anissue of law which "would require a reversal or modification of the judgment as a matter of lawby an appellate court" (CPL 330.30 [1]; see People v Alfaro, 66 NY2d 985 [1985];People v Echevarria, 233 AD2d 200, 203 [1996]; People v Sadowski, 173 AD2dat 873-874).
We note that the defendant's challenge to the count in the indictment charging endangeringthe welfare of a child as jurisdictionally defective is an alternative argument for affirmance,which cannot be considered by this Court (see People v Karp, 76 NY2d 1006 [1990];People v Goodfriend, 64 NY2d 695 [1984]). Chambers, J.P., Hinds-Radix, Duffy andLaSalle, JJ., concur.