| People v Horton |
| 2019 NY Slip Op 04782 [173 AD3d 1338] |
| June 13, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Benjamin Horton, Appellant. |
Brian M. Quinn, Albany, for appellant, and appellant pro se.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), forrespondent.
Devine, J. Appeal from a judgment of the County Court of Schenectady County (Sira, J.),rendered August 24, 2016, upon a verdict convicting defendant of the crimes of predatory sexualassault against a child (two counts), sexual abuse in the first degree and endangering the welfareof a child.
In 2015, the victim (born in 2003) accused defendant of molesting him in multiple counties.The allegations included incidents in Schenectady County, where defendant was charged in anindictment with predatory sexual assault against a child (two counts), criminal sexual act in thefirst degree (two counts), sexual abuse in the first degree and endangering the welfare of a child.Following a jury trial, he was found guilty as charged. County Court initially sentenced him uponall six counts but, after the People alerted it to the fact that the counts of criminal sexual act inthe first degree were lesser included offenses of the counts of predatory sexual assault against achild, it dismissed the former and otherwise adhered to its original sentence. The end result was asentence of 25 years to life in prison for each count of predatory sexual assault against a child,seven years in prison to be followed by 10 years of postrelease supervision for sexual abuse inthe first degree, and one year in jail for endangering the welfare of a child, the sentences to runconcurrently. Defendant appeals.[FN*]
We affirm. Defendant contends that the verdict was unsupported by legally sufficient proofand against the weight of the evidence. In that regard, the People sought to prove that, betweenJanuary 1, 2015 and February 28, 2015 in Schenectady County, the 43-year-old defendantengaged in oral and anal sexual conduct with the 11-year-old victim (see Penal Law§§ 130.00 [2]; 130.50 [4]; 130.96), subjected the victim to sexual contact(see Penal Law §§ 130.00 [3]; 130.65 [4]) and acted in a manner likelyto be injurious to his physical, mental or moral welfare (see Penal Law§ 260.10 [1]).
The trial proof reflected that defendant helped the victim's family move to New York, where,in the fall of 2014, they established a residence in Saratoga County. In December 2014, defendantbecame a daily presence at the Saratoga County residence and cultivated a close relationship withthe victim to the exclusion of others, a point confirmed by the testimony of the victim and hisrelatives, as well as numerous text messages obtained from defendant's phone in which heprofessed his love for the victim. According to the victim's mother, defendant and the victimbegan spending weekends at a Schenectady County residence in January 2015, ostensibly so thatthe victim could help defendant work on a house that he was purchasing. The victim confirmedthat he spent weekends at the Schenectady County residence that winter and shared a bed withdefendant. He further testified that, while there, he performed oral sex on defendant, defendantperformed anal sex on him, and each touched the other's penis. The victim's mother testified thatthese weekend visits ended in February 2015, recalling that defendant accompanied the victim'sfamily on a trip to Florida that month and thereafter divided his time between the SaratogaCounty residence and his newly-acquired home in Herkimer County. The victim's motherdirected defendant to leave the Saratoga County residence in May 2015 after learning that he wasdoing "sexual things" with the victim; she contacted authorities the next day after an upset victimgave her a fuller account. The victim stated that he delayed in disclosing the abuse because heliked defendant and was frightened by defendant's threat to kill himself if the victim told, and thePeople presented testimony from a psychologist as to why victims of child sex abuse may delayin reporting it.
Notwithstanding the failure of the victim to specify precisely when the charged conductoccurred, viewing the foregoing "evidence in the light most favorable to the People, we find thatthe jury could properly credit the testimony of the victim and thereby conclude that each andevery element of the crime[s] charged was proven beyond a reasonable doubt" (People v Johnson, 24 AD3d 967,968 [2005], lv denied 6 NY3d 814 [2006]; see People v Skeen, 139 AD3d 1179, 1181 [2016], lvdenied 27 NY3d 1155 [2016]). Defendant further argues that the victim's account wasunworthy of belief due to the lack of details and corroborating physical evidence, the delay indisclosure, the victim's learning disabilities and mental health issues, and his prior allegationsabout defendant that the victim's mother, at the time, averred were untruthful. These issues mayhave rendered acquittal a reasonable possibility (see People v Romero, 7 NY3d 633, 643-644 [2006]), but they wereexplored at trial and did not dissuade the jury from crediting the victim's testimony. We defer tothat assessment of credibility and, after viewing the evidence in a neutral light, "discern no basisto conclude that [the jury's] determination here was against the weight of the evidence" (People v Thiel, 134 AD3d 1237,1239-1240 [2015], lv denied 27 NY3d 1156 [2016]; see People v Van Alphen, 167 AD3d 1076, 1078 [2018], lvdenied 32 NY3d 1210 [2019]; People v Bullock, 145 AD3d 1104, 1106 [2016]; People vSkeen, 139 AD3d at 1181).
Defendant next complains that County Court improperly admitted evidence of uncharged badacts. The People sought to introduce recorded conversations between defendant and the victim'smother, occurring soon after the mother contacted law enforcement, in which defendantresponded to the victim's allegations, discussed his relationship with the victim and admitted tocertain inappropriate behavior. Contrary to defendant's suggestion, "this evidence was admissibleas relevant to the non-propensity purpose of establishing the nature of the relationship betweendefendant and the victim and for establishing the context for the" charged conduct (People v Nash, 87 AD3d 757,758-759 [2011], lv denied 17 NY3d 954 [2011]; see People v Frankline, 27 NY3d 1113, 1115 [2016]; People v Leeson, 12 NY3d 823,826-827 [2009]). County Court gave an appropriate limiting instruction, which it reiterated in itsjury charge, and we accordingly perceive no abuse of discretion in the finding that the probativevalue of the recorded conversations outweighed their prejudicial effect so as to warrant theiradmission (see People v Leeson, 12 NY3d at 826-827; People v Britton, 140 AD3d 975,976 [2016], lv denied 28 NY3d 927 [2016]; People v Kamp, 129 AD3d 1339, 1340 [2015], lv denied 26NY3d 969 [2015]; cf. People vLeonard, 29 NY3d 1, 7-8 [2017]).
Further, County Court properly "allowed the People to elicit testimony about the fact andtiming of [the victim's] revelations for the nonhearsay purpose of explaining the events kickingoff the investigative process that led to the charges against defendant" (People v Cullen, 24 NY3d 1014,1016 [2014]; see People vHonghirun, 29 NY3d 284, 289-290 [2017]; People v Ludwig, 24 NY3d 221, 230-232 [2014]). The testimony inquestion was brief, explained why the victim's mother directed defendant to leave the SaratogaCounty residence and then contacted law enforcement, and was followed by an appropriatelimiting instruction and jury charge (seePeople v DeCarr, 130 AD3d 1365, 1366 [2015], lv denied 26 NY3d 1008[2015]; People v Gregory, 78 AD3d1246, 1246-1247 [2010], lv denied 16 NY3d 831 [2011]).
Inasmuch as defendant failed to request that County Court instruct the jury regarding lesserincluded offenses or object to the charge as delivered, his additional contention that such aninstruction should have been given is unpreserved for our review (see People v VanAlphen, 167 AD3d at 1079; Peoplev Arhin, 165 AD3d 1487, 1489 [2018]). In any event, the verdict was not rendereddefective by the absence of such an instruction, and defendant obtained the relief to which he wasentitled "when County Court dismissed the counts charging course of sexual conduct against achild in the first degree as lesser included offenses of the counts of predatory sexual assaultagainst a child upon which defendant was convicted" (People v Van Alphen, 167 AD3dat 1079; see CPL 300.40 [3] [b]; People v Al Haideri, 141 AD3d 742, 745 [2016], lv denied28 NY3d 1025 [2016]).
Defendant also argues, in the brief of appellate counsel and his pro se supplemental brief,that he received the ineffective assistance of trial counsel. Many of his contentions involvematters outside the record that must be advanced in a CPL article 440 motion, including that trialcounsel did not properly investigate the case, communicate with him, or "consult or hire anexpert witness on the issue of child sexual abuse syndrome, so as to refute the testimony offeredby the People at trial" (People vHernandez, 125 AD3d 885, 887 [2015], lv denied 26 NY3d 968 [2015]; see People v Williams, 171 AD3d1354, 1355 [2019]). The record that is before us reflects that defense counsel handled adifficult case capably, engaging in successful pretrial motion practice to suppress defendant'sstatements to investigators, then advancing a trial strategy of attacking the credibility of thePeople's witnesses through effective cross-examination and appropriate objections. As such, "theevidence, the law, and the circumstances . . . , viewed in totality and as of the timeof the representation, reveal that the attorney provided meaningful representation" as required(People v Baldi, 54 NY2d 137, 147 [1981]; see People v Alvarez, 33 NY3d 268, 290 [2019]).
Defendant's remaining claims may be dealt with quickly. Inasmuch as the verdict wassupported by legally sufficient evidence, his pro se challenges to the sufficiency and quality ofthe proof before the grand jury are precluded (see CPL 210.30 [6]; People v Vega, 170 AD3d 1266,1273 [2019]; People v Kennedy, 78AD3d 1477, 1479 [2010], lv denied 16 NY3d 798 [2011]). His other pro secontentions, to the extent that they involve matters contained in the record, have been examinedand lack merit. Finally, in view of defendant's prior criminal history, the notably exploitativecircumstances surrounding the crimes here and his complete lack of remorse, we perceivenothing harsh or excessive about the sentences imposed (see People v Warrington, 155 AD3d 1450, 1452 [2017]; People v Kalina, 149 AD3d 1264,1267-1268 [2017], lv denied 29 NY3d 1092 [2017]).
Egan Jr., J.P., Lynch, Aarons and Rumsey, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:Defendant has separatelyappealed from his conviction on a charge related to his conduct toward the victim in SaratogaCounty (People v Horton, 173 AD3d 1342 [2019] [appeal No. 108938, decided herewith]).