| People v Henry |
| 2019 NY Slip Op 04723 [173 AD3d 900] |
| June 12, 2019 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Mark Henry, Appellant. |
Paul Skip Laisure, New York, NY (Cynthia Colt of counsel), for appellant.
John M. Ryan, Acting District Attorney, Kew Gardens, NY (John M. Castellano, JohnnetteTraill, and Hannah X. Collins of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (SalvatoreModica, J.), rendered March 3, 2014, convicting him of criminal sexual act in the first degree(four counts) and endangering the welfare of a child (two counts), upon a jury verdict, andsentencing him to (1) concurrent determinate terms of imprisonment of 15 years, plus 15 years ofpostrelease supervision, on the convictions of criminal sexual act in the first degree under countsone and two of the indictment, to run consecutively to concurrent determinate terms ofimprisonment of 20 years, plus 15 years of postrelease supervision, on the convictions ofcriminal sexual act in the first degree under counts three and four of the indictment, and (2)definite terms of imprisonment of 1 year on each of the endangering the welfare of a childconvictions, to run concurrently with each other and with the terms of imprisonment imposed onthe convictions of criminal sexual act in the first degree under counts one, two, three, and four ofthe indictment.
Ordered that the judgment is modified, as a matter of discretion in the interest of justice, (1)by reducing the sentence imposed on the convictions of criminal sexual act in the first degreeunder counts one and two of the indictment from concurrent determinate terms of imprisonmentof 15 years, plus 15 years of postrelease supervision, to concurrent determinate terms ofimprisonment of 10 years, plus 15 years of postrelease supervision, and (2) by reducing thesentence imposed on the convictions of criminal sexual act in the first degree under counts threeand four of the indictment from concurrent determinate terms of imprisonment of 20 years, plus15 years of postrelease supervision, to concurrent determinate terms of imprisonment of 15 years,plus 15 years of postrelease supervision; as so modified, the judgment is affirmed.
The defendant was convicted, upon a jury verdict, of criminal sexual act in the first degree(four counts) and endangering the welfare of a child (two counts) for acts involving thedefendant's extended family members, brothers who were 8 and 11 years old at the time thesecrimes were committed in August 2012. The complainants testified, inter alia, that, in August2012, the defendant performed oral sex upon both of them, and then made them perform oral sexupon him. The People also elicited testimony that, in June 2012, the defendant performed oralsex upon the older complainant and made the older complainant perform oral sex upon him, andthat the older complainant made the younger complainant perform oral sex upon him prior to thedefendant's abuse of both boys but during the same week in August 2012.
The defendant contends that the Supreme Court should not have allowed the prosecutor toelicit evidence of the June 2012 incident between the defendant and the older complainant."Evidence of uncharged crimes is inadmissible where its only purpose is to show bad character orpropensity towards crime" (People vArafet, 13 NY3d 460, 464-465 [2009]; see People v Molineux, 168 NY 264[1901]; People v Littlejohn, 112AD3d 67 [2013]). "On the other hand, evidence relevant to prove some fact in the case,other than the defendant's criminal propensity, is not rendered inadmissible simply because itmay also reveal that the defendant has committed other crimes" (People v Allweiss, 48NY2d 40, 46-47 [1979]).
Here, the testimony describing the defendant's uncharged criminal behavior against the oldercomplainant in June 2012 was relevant to complete the narrative of the events charged and toprovide necessary background information, including the nature of the relationship between thedefendant and the older complainant, and the older complainant's sexualization (see People v Morris, 21 NY3d588, 594 [2013]; People vHarris, 117 AD3d 847, 854 [2014]; People v Khan, 88 AD3d 1014, 1014-1015 [2011]). Further, theprobative value of the evidence outweighed its potential for undue prejudice to the defendant (see People v Cass, 18 NY3d 553,560 [2012]; People v Khan, 88 AD3d at 1015).
Contrary to the defendant's contention, the Supreme Court did not deprive him of his right toan impartial jury when it declined to discharge the jury foreperson, whom the defendant allegedwas grossly unqualified (see People vElias, 90 AD3d 947, 947 [2011]). The court's factual determinations were made afterconducting a "probing and tactful inquiry" into the jury foreperson's impartiality (People vBuford, 69 NY2d 290, 299 [1987]), and was supported by the record.
Further, contrary to the defendant's contention, the Supreme Court providently exercised itsdiscretion in declining defense counsel's request to conduct an individual inquiry of four swornjurors who expressed a concern that a spectator associated with the defendant had takenphotographs inside the courtroom. The court's decision to investigate the jurors' allegations ofspectator misconduct by having counsel conduct a thorough independent inquiry of the spectatorsoutside the presence of the jury, followed by the court delivering a curative instruction assuringthe jury that the concerns had been unfounded and should not influence the jury's deliberations,was an appropriate exercise of the court's discretion (see People v Kuzdzal, 31 NY3d 478, 485-486 [2018]; cf. People v Argendorf, 76 AD3d1100, 1100-1101 [2010]).
However, the sentence imposed was excessive to the extent indicated herein (see Peoplev Suitte, 90 AD2d 80 [1982]). Dillon, J.P., Balkin, Austin and Barros, JJ., concur.