| People v Madsen |
| 2019 NY Slip Op 00003 [168 AD3d 1134] |
| January 3, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Robert A. Madsen, Appellant. |
Matthew C. Hug, Albany, for appellant.
Kelli P. McCoski, District Attorney, Fonda (Pamela A. Ladd of counsel), forrespondent.
Garry, P.J. Appeal from a judgment of the County Court of Montgomery County (Catena, J.),rendered April 7, 2015, upon a verdict convicting defendant of the crimes of predatory sexualassault against a child (two counts), criminal sexual act in the second degree (10 counts),criminal sexual act in the third degree (14 counts), sexual abuse in the second degree (twocounts), sexual abuse in the third degree (three counts) and endangering the welfare of a child(six counts).
Defendant resided on a farm in the Town of St. Johnsville, Montgomery County that hepurchased in 2003. In 2005, he sold some of his land to an Amish family with 15 children and, inthe same year, he met another Amish family with nine children. Between 2006 and 2013, threeboys from the first family and three boys from the second family worked periodically fordefendant doing odd jobs around the farm. During that time, defendant subjected all six victimsto sexual contact. In January 2014, one of the victims disclosed defendant's conduct towards himto a neighbor. The neighbor advised the State Police. An investigation ensued, during the courseof which the other victims made further disclosures regarding defendant's conduct towardthem.
Defendant was charged with multiple crimes. Following a jury trial, he was acquitted onthree counts and convicted of predatory sexual assault against a child (two counts), criminalsexual act in the second degree (10 counts), criminal sexual act in the third degree (14 counts),sexual abuse in the second degree (two counts), sexual abuse in the third degree (three counts)and endangering the welfare of a child (six counts). County Court sentenced defendant toconsecutive prison terms on five counts—20 years to life for one conviction of predatorysexual assault against a child (count 1), five years each for three convictions of criminal sexualact in the second degree (counts 15, 19 and 32) and three years for one conviction of criminalsexual act in the third degree (count 25)—along with other equal or lesser concurrentterms on the remaining convictions and postrelease supervision. Defendant appeals.
Initially, defendant contends that his convictions were not supported by legally sufficientevidence and were against the weight of the evidence in that the victims' testimony was so vagueand conclusory that it did not support a verdict based on anything but speculation. Defendant'slegal sufficiency argument is unpreserved, as his trial motion for dismissal argued only thatcertain counts were duplicitous (see People v Gray, 86 NY2d 10, 19 [1995]; People v Perillo, 144 AD3d 1399,1400 [2016], lv denied 29 NY3d 951 [2017]).[FN1] "However, a weight of the evidence challenge,which bears no preservation requirement, also requires consideration of the adequacy of theevidence as to each element of the crimes" (People v Cruz, 131 AD3d 724, 725 [2015], lv denied 26NY3d 1087 [2015]; accord People v Perillo, 144 AD3d at 1400; see generally People v Danielson, 9NY3d 342, 349 [2007]).
The People's witnesses included the six victims, State Police investigators, and familymembers of the victims and of defendant. The victims each testified that they had worked fordefendant during one or more summers, and they identified the ages at which defendant hadsexual contact with each of them, beginning at age 12 for victim 1 and at ages 13, 14 or 15 forthe other victims. They described the manner by which defendant introduced them to sexualcontact, such as by expressing interest in the construction of their clothing and asking toinvestigate the way their pants were fastened. Each victim testified about the forms of sexualcontact that defendant then subjected them to, including contact with his hands on the inside andoutside of their pants and, for all but victim 6, oral sexual contact, and they described thefrequency with which this conduct occurred. The victims also testified that defendant showedthem pornographic magazines and videos. They described several locations on the farm wherethe various sexual acts occurred, including the farmhouse basement, a cabin and a camper storedin a barn. Two of defendant's family members testified as to statements made by defendant tothem following his arrest that could reasonably have been interpreted as acknowledgments thatthe charges against him were true.
Defendant testified on his own behalf. He denied that he had sexual contact with any of thevictims when they were underage. He acknowledged that he had done so on a consensual basiswith some of the victims after they reached the age of consent, and he asserted that the victimshad falsely claimed that sexual contact had occurred when they were underage because theyfeared repercussions in the Amish community for having engaged in this consensual conduct. Onappeal, he argues that there were inconsistencies in the victims' testimony and that the generalsimilarity of their accounts suggests that they were jointly fabricated. These claims, however,were explored at trial and raised credibility issues to be resolved by the jury (see People v St. Ives, 145 AD3d1185, 1187 [2016], lv denied 29 NY3d 1036 [2017]; People v Simonetta, 94 AD3d1242, 1244 [2012], lv denied 19 NY3d 1029 [2012]). As for defendant's argumentthat the time periods specified in the indictment—in most cases, a season such as thesummer of a given year—were too imprecise, nothing in the record suggests "that thePeople were aware of and disregarded a narrower time frame" or "that they failed to makediligent efforts to ascertain the most precise time period" and, considering all of thecircumstances, we find that the specified time periods were not unreasonable (People v Garcia, 141 AD3d 861,863-864 [2016], lv denied 28 NY3d 929 [2016]; see People v Watt, 84 NY2d948, 951 [1994]). Further, "as his defense was a categorical denial of any abuse or sexualcontact" while the victims were underage, defendant was not deprived of the ability to prepare adefense by the absence of more specific time frames (People v Porlier, 55 AD3d 1059, 1060 [2008]; accord People vGarcia, 141 AD3d at 864).
Had the jury credited defendant's testimony rather than that of the victims, a different verdictwould not have been unreasonable; thus, we "must, like the trier of fact below, weigh the relativeprobative force of conflicting testimony and the relative strength of conflicting inferences thatmay be drawn from the testimony" (People v Bleakley, 69 NY2d 490, 495 [1987][internal quotation marks and citation omitted]; see People v Desmond, 118 AD3d 1131, 1133 [2014], lvdenied 24 NY3d 1002 [2014]). Upon that review, "[w]e accord great deference to the jury'sopportunity to view the victims' testimony and assess their credibility, as well as their ability torecall the specific details and time frames of particular sex crimes" (People v Jabaut, 111 AD3d 1140,1144 [2013], lv denied 22 NY3d 1139 [2014]). We find that the verdict is supported bythe weight of the evidence, with the exception of one conviction (see People v Chaneyfield, 157 AD3d996, 999-1000 [2018], lv denied 31 NY3d 1012 [2018]; People v Lancaster, 143 AD3d1046, 1047-1049 [2016], lv denied 28 NY3d 1147 [2017]; People v Din, 110 AD3d 1246,1247-1248 [2013], lv denied 22 NY3d 1137 [2014]).
The one exception arises out of counts 32, 33 and 34 of the indictment, each of whichcharged defendant with criminal sexual act in the second degree on the ground that he engaged inoral sexual conduct with victim 4 during the summer of 2010. Victim 4 testified that he "[didnot] exactly remember" how often defendant had oral sexual contact with him that summer, buthe confirmed that it had happened "[m]ore than once" and described two locations on the farmwhere it had taken place. Lacking any further evidence as to the frequency of the acts, the weightof the evidence does not establish that defendant engaged in oral sexual conduct with victim 4 onmore than two occasions. Thus, one of these convictions must be reversed, and we designatecount 34 for this purpose (see CPL 470.15 [5]; People v O'Neil, 66 AD3d 1131, 1134-1135 [2009]).
Defendant next claims that certain indictment counts were rendered duplicitous by thevictims' testimony.[FN2] Anindictment count is duplicitous when it charges more than one crime that is completed by adiscrete act in the same count (see People v Keindl, 68 NY2d 410, 417-418 [1986])."Even if a count is valid on its face, it is nonetheless duplicitous where the evidence presented tothe grand jury or at trial 'makes plain that multiple criminal acts occurred during the relevant timeperiod, rendering it nearly impossible to determine the particular act upon which the jury reachedits verdict' " (People vBlack, 65 AD3d 811, 813 [2009], lv denied 13 NY3d 905 [2009], quoting People v Dalton, 27 AD3d 779,781 [2006], lv denied 7 NY3d 754 [2006]). Thus, when "the trial testimony providesevidence of repeated acts that cannot be individually related to specific counts in the indictment,the prohibition against duplicitousness has been violated" (People v Jones, 165 AD2d103, 108-109 [1991], lv denied 77 NY2d 962 [1991]).
Despite the reprehensible nature of the charged crimes, we are constrained to agree that thechallenged convictions must be reversed. Although defendant concedes that the challengedcounts are facially valid, he contends that they are duplicitous because the indictment containsmultiple counts that charge the same crimes against the same victims during the same timeperiods, and the victims' testimony about defendant's actions during these periods cannot beindividually matched to the respective counts. For example, counts 1 and 2 of the indictmentused identical language to charge defendant with predatory sexual assault against a child on theground that he committed the crime of criminal sexual assault in the first degree against victim 1during the summer of 2006 (see Penal Law §§ 130.50 [4]; 130.96).Victim 1 testified that, during the summer of 2006 when he was 12 years old, defendant put hismouth on victim 1's penis "[a]t least two times." Likewise, counts 5 and 6 charged defendantwith criminal sexual act in the second degree consisting of oral sexual conduct with victim 1during the summer of 2007, counts 7 and 8 charged defendant with the commission of the samecrime during the summer of 2008, counts 9 through 12 charged defendant with the commissionof two counts of criminal sexual act in the third degree in each of the summers of 2009 and 2010,and count 13 charged defendant with the commission of sexual abuse in the second degree duringthe summer of 2006. Victim 1 testified that the charged conduct occurred at least twice duringeach of the specified time periods. He provided no further specifics about the frequency or timingof any particular act, and the prosecutor did not seek to distinguish among them by, for example,drawing victim 1's attention to the first incident in one of the specified time periods and thenasking him to describe that particular event (compare People v Weber, 25 AD3d 919, 922 [2006], lvdenied 6 NY3d 839 [2006]). Likewise, the jury was given no instructions that distinguishedbetween the counts pertaining to any of the time periods in a way that would have permitted it torelate each of the counts to a specific act (compare People v Sinha, 84 AD3d 35, 45 [2011], affd 19NY3d 932 [2012]). Nor was the jury instructed "that it must arrive at a unanimous verdict withrespect to each alleged act, and that it may not use any single act of sexual [conduct] to support aguilty verdict on more than one count" (People v Black, 65 AD3d at 814). Thus, in thistrial record it is impossible to identify the particular act upon which any of these verdicts wasbased or "to verify that each member of the jury convicted defendant for the same criminal act"as to each count (People v Dalton, 27 AD3d at 781).
Similarly, counts 25, 26 and 27 of the indictment charged defendant with criminal sexual actin the third degree based upon oral sexual conduct involving victim 2 during the fall of 2009, andvictim 2 testified that the acts occurred "between two to five times." Count 28 charged defendantwith criminal sexual act in the third degree involving victim 2 during the late spring and earlysummer of 2010, and count 29 charged defendant with the same crime involving the same victimin the fall of 2010. Victim 2 testified that defendant had sexual contact with him "several times"during the summer and fall of 2010 and that oral sexual conduct occurred three times, withoutproviding specifics about any particular incident. Similar problems affect count 15 chargingdefendant with criminal sexual act in the second degree involving victim 3; counts 32 and 33charging criminal sexual act in the second degree,[FN3] counts 35 through 37 charging criminal sexualact in the third degree and count 39 charging sexual abuse in the third degree involving victim 4;and count 41 charging sexual abuse in the third degree involving victim 6.[FN4] Accordingly, defendant'sconvictions based upon these counts must be reversed and the counts must be dismissed, withleave to the People to resubmit the charges to a new grand jury if appropriate (see People v Baker, 123 AD3d1378, 1378-1379 [2014]; People v Black, 65 AD3d at 811-815; People v Levandowski, 8 AD3d898, 899-900 [2004]).
Defendant's remaining claims are rendered academic by this determination.
Egan Jr., Clark, Mulvey and Rumsey, JJ., concur. Ordered that the judgment is modified, onthe law and the facts, by reversing defendant's convictions of predatory sexual assault against achild, criminal sexual act in the second degree, criminal sexual act in the third degree, sexualabuse in the second degree and sexual abuse in the third degree under counts 1, 2, 5, 6, 7, 8, 9,10, 11, 12, 13, 15, 25, 26, 27, 28, 29, 32, 33, 34, 35, 36, 37, 39 and 41 of the indictment; saidcounts dismissed and the sentences imposed thereon vacated, with leave to the People tore-present any appropriate charges, not including count 34, to a new grand jury; and, as somodified, affirmed.
Footnote 1:Defendant likewise failed topreserve his appellate contention that the evidence supporting his convictions under counts 25,26 and 27 of the indictment for criminal sexual act in the third degree are legally insufficientbecause the counts alleged that the sexual conduct occurred in the fall of 2009, and the testimonyestablished that it was, instead, during that summer. As a result, County Court had no opportunityto consider the propriety of amending the challenged counts to conform to the proof (see e.g.People v Glover, 185 AD2d 458, 459-460 [1992]). We note that defendant alleges noprejudice to his ability to prepare a defense, or otherwise, resulting from the discrepancy.
Footnote 2:Contrary to the People'sargument, the duplicity contentions are adequately preserved (compare People v Tomlinson, 53 AD3d 798, 798 [2008], lvdenied 11 NY3d 835 [2008]; Peoplev Van Ness, 43 AD3d 553, 554 [2007], lv denied 9 NY3d 965 [2007]). In histrial motion for dismissal, defendant's counsel specifically discussed the charges involving victim1, but further stated that he was doing so as an example. He asserted that the charges wereduplicitous "throughout the entire indictment" and that his argument applied to all the indictmentcounts that were identical to one another for the same victims and time periods.
Footnote 3:Defendant also contends thatcount 34, charging the same crime against the same victim, is duplicitous but, as we have foundthat conviction to be against the weight of the evidence, we do not address that claim.
Footnote 4:Defendant does not claim thatany of the counts involving victim 5—counts 19 through 24—are duplicitous.