| People v Werkheiser |
| 2019 NY Slip Op 02749 [171 AD3d 1297] |
| April 11, 2019 |
| Appellate Division, Third Department |
[*1](April 11, 2019)
| The People of the State of New York,Respondent, v Julie K. Werkheiser, Appellant. |
Pamela B. Bleiwas, Ithaca, for appellant.
Kirk O. Martin, District Attorney, Owego (Cheryl A. Mancini of counsel), forrespondent.
Pritzker, J. Appeals (1) from a judgment of the County Court of Tioga County (Keene, J.),rendered February 5, 2016, upon a verdict convicting defendant of the crime of predatory sexualassault against a child (two counts), and (2) by permission, from an order of said court, enteredMay 23, 2018, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgmentof conviction, without a hearing.
Following a jury trial, defendant was found guilty of two counts of predatory sexual assaultagainst a child stemming from the sexual abuse of victim A (born in 1998) and victim B (born in1999) from July 2006 to November 2007 at the dance studio where defendant was an instructorin the Village of Waverly, Tioga County.[FN*] Defendant was sentenced to a prison term of 11years to life for each count, with the sentences to run concurrently. Defendant subsequently fileda pro se motion to vacate the judgment of conviction pursuant to CPL 440.10 on the ground thatnew evidence had been discovered since the entry of judgment. County Court denied the motionwithout a hearing. Defendant now appeals from the judgment of conviction and, by permission,from the denial of her CPL 440.10 motion. We affirm.
Initially, as defendant concedes, her challenge to the legal sufficiency of the evidence is notpreserved given that trial counsel's motion for a trial order of dismissal at the close of thePeople's proof was not "specifically directed at the errors being urged on appeal" (People v Cruz, 131 AD3d 724,724 [2015] [internal quotation marks, brackets and citations omitted], lv denied 26 NY3d1087 [2015]; see People v Stahl, 53 NY2d 1048, 1050 [1981]). "However, a weight ofthe evidence challenge, which bears no preservation requirement, also requires consideration ofthe adequacy of the evidence as to each element of the crimes" (People v Perillo, 144 AD3d 1399,1400 [2016] [internal quotation marks and citations omitted], lv denied 29 NY3d 951[2017]; accord People v Cruz, 131 AD3d at 725). "Under a weight of the evidenceanalysis, if a different result would not have been unreasonable, this Court must then weigh therelative probative force of conflicting testimony and the relative strength of conflicting inferencesthat may be drawn from the testimony" (People v Fournier, 137 AD3d 1318, 1319 [2016] [internalquotation marks, brackets and citations omitted], lv denied 28 NY3d 929 [2016]; see People v LaDuke, 140 AD3d1467, 1468 [2016]).
As relevant here, "[a] person is guilty of predatory sexual assault against a child when, being[18] years old or more, he or she commits the crime of . . . course of sexual conductagainst a child in the first degree . . . and the victim is less than [13] years old"(Penal Law § 130.96). A person commits the crime of course of sexual conductagainst a child in the first degree "when, over a period of time not less than three months induration[,] . . . he or she, being [18] years old or more, engages in two or more actsof sexual conduct, which include at least one act of . . . oral sexual conduct,. . . with a child less than [13] years old" (Penal Law § 130.75 [1][b]).
Victim A, who was 17 years old at the time of trial, testified that she was born in 1998 andwas eight to nine years old during the sexual conduct. From July 2006 to November 2007, victimA took dance lessons almost daily at the studio where defendant was an instructor. Victim Atestified that, when the lessons were over and the other students had gone, defendant would takevictim A into a closet located on the lower level of the studio and she would stick her fingers andher tongue into victim A's vagina. Victim A testified that the same sexual conduct occurred in astorage room in the upstairs of the dance studio. Victim A further testified that she did notremember how many times the sexual conduct occurred in the closet, stating that it happened "[a]lot" and that there was not a month during which it did not happen from July 2006 to November2007. Victim A also explained that she watched defendant subject victim B to the same sexualconduct multiple times from July 2006 to November 2007. Victim A testified that during thesexual conduct that happened both to her and to victim B, defendant sang lullabies with words ina different language. Victim A also explained that she does not have a good relationship withvictim B, and that they "never talked about" the sexual abuse by defendant.
Victim A further explained that she did not tell anyone about the sexual conduct because shebelieved that it was her fault and, moreover, defendant told victim A that if she told anyone,defendant would kill her. Victim A acknowledged that she previously told a Child ProtectiveServices worker that she did not witness defendant touch anyone and was not sure if defendantdid anything to her. Victim A explained that she did not say anything about the sexual abuse untilthe fall of 2013 because she did not remember it. Victim A described two specific events thattriggered her memory of the sexual abuse.
Victim B, who was 16 years old at the time of trial, testified that she was born in 1999.Victim B explained that she attended the studio where defendant worked and, from July 2006 toNovember 2007, defendant sexually abused her in an upstairs room at the dance studio bytouching victim B's chest and putting her fingers and tongue in victim B's vagina. Victim Bexplained that the abuse also occurred downstairs in the dance studio. Victim B testified that thissexual conduct occurred more than two times per month from July 2006 to November 2007.Victim B recalled that defendant sang during the sexual conduct and, that if victim B cried,defendant would tell her to "shut up" and that she would send someone after her. Victim Btestified that she first told her stepmother about the sexual abuse but that she did not rememberwhen. She also testified that she and victim A were not abused together, but that she had afeeling, although she never saw it, that victim A was abused. However, she did observe victim Acome out of the bathroom area upstairs crying on more than two occasions. Victim Backnowledged that when she talked to other people about the sexual abuse, she stated that italways happened in the same room and that defendant took off her clothes, although at trial, shetestified that either she or defendant took off her clothes and that she had no knowledge ofdefendant abusing anyone else at the dance studio. Also, victim B acknowledged that, duringprior testimony, she stated that defendant did not threaten her.
Stephan Perkowski, a licensed clinical social worker, testified about Child Sexual AbuseAccommodation Syndrome and certain characteristics that are commonly observed in cases ofchild sexual abuse. Perkowski also testified about delayed disclosure, specifically explaining thatthe story of a sexually abused child generally comes in "piece-meal" and rarely comes out in fullthe first time the child is interviewed. Perkowski explained that many factors prompt delayeddisclosure, including proximity or lack of proximity to the alleged offender, coming to termswith what happened to the child and feeling less pressure about sexual abuse. He explained thatthreats also play a role in delayed disclosure because the younger the child is, the more likely heor she is to believe that the threat is real and can happen. Kevin Antshel, an associate professor ofpsychiatry, testified about phenylketonuria (hereafter PKU), a medical condition that affects bothvictim A and victim B. According to Antshel, PKU affects working memory but not long termmemory. Defendant's sister testified that defendant was born in 1976. Defendant testified thatvictims A and B took dance lessons at her dance studio but denied any sexual abuse or threats.Three witnesses, all of whom were involved with the dance studio and knew defendant and bothvictims, testified that they never observed any sexual conduct between defendant and thevictims.
While some of the victims' testimonies were inconsistent, both with one another and withtheir own prior statements, "it is not uncommon for young children to be uncertain and eveninconsistent in their trial testimony" (People v Russell, 116 AD3d 1090, 1092 [2014] [internal quotationmarks and citations omitted]). Nor do we find that these inconsistencies render the victims'testimonies "inherently unbelievable or incredible as a matter of law" (id. at 1092; see People v Beauharnois, 64 AD3d996, 999 [2009], lv denied 13 NY3d 834 [2009]). Also, both victims testified thattheir delay in reporting was due to threats and lack of memory (see People v Reynolds, 81 AD3d1166, 1166-1167 [2011], lv denied 16 NY3d 898 [2011]). Additionally, these issueswere fully revealed at trial and explored during defendant's cross-examination of both victimsand presented credibility questions to be resolved by the jury (see People v Chaneyfield, 157 AD3d 996, 1000 [2018], lvdenied 31 NY3d 1012 [2018]; People v Russell, 116 AD3d at 1092). Therefore,viewing the evidence in a neutral light and according great deference to the jury's credibilitydeterminations given their opportunity to view the victims' demeanors and assess their credibilityin light of these concerns, we find the verdict to be in accord with the weight of the evidence(see People v Chaneyfield, 157 AD3d at 1000; People v Russell, 116 AD3d at1092).
We turn next to defendant's contention that she was deprived of a fair trial due to CountyCourt's evidentiary rulings. Specifically, defendant asserts that the court improperly denied herrequest for a taint hearing. "Although there is no express statutory authority for a hearing todetermine whether the testimony of a child witness has been tainted by suggestive interviewingtechniques, a court nonetheless may—upon a proper showing by thedefendant—direct that a pretrial taint hearing be held" (People v Muckey, 158 AD3d 954, 955 [2018] [internal quotationmarks, brackets and citations omitted], lv denied 31 NY3d 1015 [2018]; see People v Milford, 118 AD3d1166, 1168 [2014], lv denied 23 NY3d 1065 [2014]). In an affidavit to support hermotion for a taint hearing, defendant contended, among other things, that there was manipulationof the victims because the claims of sexual abuse against defendant came about in the context ofa custody dispute between the victims' mother and father and a neglect petition filed againstdefendant that was related to her newborn son. Because defendant's claims of manipulation werepurely speculative, we find that County Court did not abuse its discretion in denying the requestfor a taint hearing (see People v Muckey, 158 AD3d at 955; People v Nickel, 14 AD3d 869,870-871 [2005], lv denied 4 NY3d 834 [2005]).
Defendant also argues that County Court improperly denied her request to introduce thevictims' father's sex offender status, which she argues was relevant to the father's motivation tomanipulate the victims to make their sexual abuse allegations. A defendant has a constitutionalright to present a defense, however, "it is well established that the trial courts have broaddiscretion to keep the proceedings within manageable limits and to curtail exploration ofcollateral matters" (People vSpencer, 20 NY3d 954, 956 [2012] [internal quotation marks, brackets and citationomitted]; see People v Grant, 60AD3d 865, 865 [2009]). Although proof that tends to establish a motive to fabricate is notcollateral and may not be excluded on that ground, a trial court may exclude testimony thatattempts to indirectly attack a victim's credibility by attacking the credibility of a third party (see People v Brown, 128 AD3d1183, 1187 [2015], lv denied 27 NY3d 993 [2016]), which is precisely whatdefendant sought to do here. Accordingly, County Court properly excluded the evidence of thefather's sex offender status because the link between this status and the victims' allegedfabrication is too attenuated (see People v Brown, 128 AD3d at 1187; compare Peoplev Spencer, 20 NY3d at 956) and could lead the jury to speculate as to the relationshipbetween the father and the victims, which did not relate to any material issues in the case (see generally People v Ramsaran, 154AD3d 1051, 1053 [2017], lv denied 30 NY3d 1063 [2017]; People v Collins, 126 AD3d 1132,1133 [2015], lv denied 25 NY3d 1161 [2015]). Further, the record reveals that the fatherwas cross-examined regarding a conviction for which the mother was the victim, which wassufficient to allow defendant to advance her theory of possible fabrication.
Likewise, defendant asserts that County Court improperly ruled that she could not call twostudents at the dance studio as witnesses. Defendant sought to call these witnesses to presentevidence that the victims made false accusations that these two students were abused bydefendant. "Generally, a party may be precluded from introducing extrinsic evidence of collateralmatters when the sole purpose of offering such evidence is to impeach credibility" (People v St. Louis, 20 AD3d 592,593 [2005] [citations omitted], lv denied 5 NY3d 856 [2005]; see People vBlanchard, 279 AD2d 808, 811 [2001], lv denied 96 NY2d 826 [2001]). Given thatthe testimony of these two students did not have any direct bearing on the material issues of thecase, it was collateral and properly excluded (see People v St. Louis, 20 AD3d at 594;People v Blanchard, 279 AD2d at 811).
We turn next to defendant's contention that County Court erred in allowing the experttestimony of Perkowski and Antshel. The admissibility of expert testimony is left primarily to thediscretion of the trial court and, absent an abuse of discretion, that decision should not bedisturbed (see People v Williams,20 NY3d 579, 584 [2013]; People vWest, 166 AD3d 1080, 1086 [2018], lv denied 32 NY3d 1129 [2018]). Experttestimony is admissible on subjects related to professional or scientific knowledge that are notwithin the range of ordinary training or intelligence of the jury and would assist the jury (see People v Rivers, 18 NY3d 222,228 [2011]; People v Ramsaran, 154 AD3d at 1055). "[E]xpert testimony regarding. . . abused child syndrome or similar conditions may be admitted to explainbehavior of a victim that might appear unusual or that [the trier of fact] may not be expected tounderstand" (People v Carroll, 95 NY2d 375, 387 [2000]; see People v Hughes, 114 AD3d1021, 1024 [2014], lv denied 23 NY3d 1038 [2014]).
We find that County Court properly admitted the testimony of Perkowski because histestimony permitted the jury to understand why, in general, victims of child abuse delay reportingand why they might not report the full story with all of the details from the outset (see Peoplev Carroll, 95 NY2d at 387). Importantly, this testimony was also properly admitted for thepurpose of rebutting defendant's contention that the victims did not report the incident when ithappened and did not report the full story when they first disclosed it (see People v Spicola, 16 NY3d441, 465 [2011], cert denied 565 US 942 [2011]). Also, Perkowski did not render anopinion as to whether the victims were sexually abused and testified that he was not familiar withdefendant or this case (compare People v Williams, 20 NY3d at 584; People vTaylor, 75 NY2d 277, 293 [1990]). Similarly, County Court properly allowed Antshel'stestimony. His general explanation of what PKU is and how it affects a child's memory washelpful to the jury as it explained a condition from which the victims suffered, which wasrelevant to whether they remembered the events that occurred from July 2006 to November 2007(see People v Rivers, 18 NY3d at 228; People v Ramsaran, 154 AD3d at1055).
We now turn to defendant's contentions regarding County Court's denial of her CPL 440.10motion without a hearing. Specifically, defendant contends that County Court erred because avideo of a 2011 interview of the victims is newly discovered evidence warranting a new trial. Ajudgment of conviction may be vacated if the defendant shows that the newly discoveredevidence fulfills all the following requirements: "(1) [i]t must be such as will probably changethe result if a new trial is granted; (2) it must have been discovered since the trial; (3) it must besuch as could have not been discovered before the trial by the exercise of due diligence; (4) itmust be material to the issue; (5) it must not be cumulative to the former issue; and, (6) it mustnot be merely impeaching or contradicting the former evidence" (People v Tucker, 40 AD3d 1213,1214 [2007] [internal quotation marks and citations omitted], lv denied 9 NY3d 882[2007]; see CPL 440.10 [1] [g]; People v Salemi, 309 NY 208, 216 [1955],cert denied 350 US 950 [1956]; People v Lackey, 48 AD3d 982, 983 [2008], lv denied 10NY3d 936 [2008]).
In 2011, as a result of a disclosure by the victims regarding sexual abuse by their mother, thevictims were interviewed by investigators at the Binghamton Police Department. In thatinterview, which was videotaped, the victims stated that they were not abused by defendant.Ultimately, the mother was prosecuted by the Broome County District Attorney's office.Subsequently, in 2013, after the victims disclosed that they were abused by defendant at thedance studio, the police department in the Village of Waverly was contacted to conduct aninvestigation. After defendant was indicted in Tioga County based upon the 2013 disclosure,defense counsel filed an omnibus motion accompanied by an affidavit stating, as relevant here,that the victims were previously questioned by the Binghamton police in 2011 and that thevictims did not allege any sexual abuse by defendant in that interview. According to an affidavitof Cheryl Mancini, a Tioga County Assistant District Attorney, before the trial, she went to theBroome County District Attorney's office to ensure compliance with defense counsel's motionrequesting any and all Brady material. During the meeting, the Broome County DistrictAttorney's office did not provide or advise Mancini of the video. Mancini also met with defensecounsel, who told her that he had the full file from the mother's case in Broome County, but hedid not mention the video. Mancini further stated that she did not know or hear of the video untilJanuary 2017 when she spoke with Thomas Jackson, a Broome County Special Assistant DistrictAttorney, who was prosecuting the mother in her second trial. Mancini then viewed the video,which contained interviews of both victims. Also, in support of her CPL article 440 motion,defendant contended that she learned about the video in February 2017, when it was admittedinto evidence at the mother's second trial. Defendant averred that she thereafter contacted hertrial counsel about his knowledge of the video, but never received a response.
In light of these circumstances, County Court properly denied defendant's motion. First,defendant failed to show that the video was newly discovered evidence because defense counselwas aware of the contents therein, specifically what the victims said during the recordedinterview, prior to defendant's trial (seePeople v Lalonde, 160 AD3d 1020, 1027-1028 [2018], lv denied 31 NY3d 1118[2018]; People v Cain, 96 AD3d1072, 1073 [2012], lv denied 19 NY3d 1101 [2012]). Moreover, defendant failed toexplain why she could not have discovered this video with the exercise of due diligence,especially given that defense counsel had the full file of the mother's case prior to trial (see People v Wright, 88 AD3d1154, 1158 [2011], lv denied 18 NY3d 863 [2011]; People v Watkins, 49 AD3d 908,910 [2008], lv denied 10 NY3d 965 [2008]). Also, in light of the cross-examination ofboth victims, wherein defense counsel questioned them about their delayed disclosures and priorinconsistent statements regarding defendant's sexual abuse, defendant failed to show that thevideo would probably change the result of the trial (see CPL 440.10 [1] [g]; People v Terry, 44 AD3d 1157,1159 [2007], lv denied 10 NY3d 772 [2008]; People v Hogencamp, 300 AD2d734, 736 [2002]).
We are similarly unpersuaded by defendant's assertion that County Court erred in finding aBrady violation based upon the fact that that the People did not provide defendant withthe video prior to trial. "To establish a Brady violation, a defendant must show that (1)the evidence is favorable to the defendant because it is either exculpatory or impeaching innature; (2) the evidence was suppressed by the prosecution; and (3) prejudice arose because thesuppressed evidence was material" (People v Mangarillo, 152 AD3d 1061, 1064 [2017] [internalquotation marks and citations omitted]; see People v Fuentes, 12 NY3d 259, 263 [2009]). Although thevideo is impeachment evidence, defendant did not demonstrate that it was suppressed by thePeople or that she was prejudiced thereby. Mancini's affidavit established that the video wascreated during the Broome County investigation, which was completely separate from the TiogaCounty investigation and prosecution, and that she was not in possession of the video prior todefendant's trial (see People vGarrett, 23 NY3d 878, 889 [2014]; see generally People v Mangarillo, 152AD3d at 1064). The video also cannot be considered suppressed by the People because defensecounsel knew, or should have known, about the video (see People v LaValle, 3 NY3d 88, 110 [2004]). Also, defendant hasfailed to show that the video was material—i.e., that there was a reasonable probabilitythat it would have changed the outcome of the trial (see generally People v Fuentes, 12NY3d at 264-265; People vYedinak, 157 AD3d 1052, 1056 [2018]). Lastly, County Court did not abuse itsdiscretion in denying defendant's motion without a hearing because defendant's motion was notbased "upon nonrecord facts that are material and, if established, would entitle the defendant torelief" (People v Lalonde, 160 AD3d at 1026-1028 [internal quotation marks andcitations omitted]; see People v Satterfield, 66 NY2d 796, 799 [1985]). Defendant'sremaining contentions have been examined and are without merit.
Clark, J.P., Mulvey, Aarons and Rumsey, JJ., concur. Ordered that the judgment and orderare affirmed.
Footnote *:Victim A and victim B aresisters, and their mother has been in a romantic relationship with defendant since the victimswere very young.