| People v Kelsey |
| 2019 NY Slip Op 05346 [174 AD3d 962] |
| July 3, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Michael N. Kelsey, Appellant. |
The Law Office of Shane Hug, Troy (Shane Hug of counsel), for appellant.
Gary M. Pasqua, District Attorney, Canton (Matthew L. Peabody of counsel), forrespondent.
Lynch, J. Appeal from a judgment of the County Court of St. Lawrence County (Catena, J.),rendered October 21, 2016, upon a verdict convicting defendant of the crimes of sexual abuse inthe first degree, attempted sexual abuse in the first degree, forcible touching and endangering thewelfare of a child (two counts).
In June 2015, defendant was charged in a five-count indictment with sexual abuse in the firstdegree, attempted sexual abuse in the first degree, forcible touching and two counts ofendangering the welfare of a child. The charges stemmed from defendant sexually touchingvictim A (born in 1999) and attempting to sexually touch victim B (born in 1999) whilesupervising a week-long boy scouts hiking trip. Following a jury trial, defendant was convictedas charged. Thereafter, defendant was sentenced to a prison term of five years followed by 10years of postrelease supervision for his conviction of sexual abuse in the first degree and to aconsecutive prison term of two years followed by 10 years of postrelease supervision for hisconviction of attempted sexual abuse in the first degree, as well as to other lesser concurrentsentences. Defendant appeals.
Defendant contends that the jury verdict is not supported by legally sufficient evidence and isagainst the weight of the evidence. Initially, as defendant concedes, he failed to preserve his legalsufficiency claim as he did not move for a trial order of dismissal (see People v Hawkins, 11 NY3d484, 492 [2008]; People vSecor, 162 AD3d 1411, 1412 [2018], lv denied 32 NY3d 941 [2018])."However, a weight of the evidence challenge, which bears no preservation requirement, alsorequires consideration of the adequacy of the evidence as to each element of the crimes" (People v Werkheiser, 171 AD3d1297, 1298 [2019] [internal quotation marks and citations omitted]; see People v Vega, 170 AD3d1266, 1267 [2019]). "When undertaking a weight of the evidence review, we must firstdetermine whether, based on all the credible evidence, a different finding would not have beenunreasonable and then[, if not,] weigh the relative probative force of conflicting testimony andthe relative strength of conflicting inferences that may be drawn from the testimony to determineif the verdict is supported by the weight of the evidence. When conducting this review, weconsider the evidence in a neutral light and defer to the jury's credibility assessments" (People v Gill, 168 AD3d 1140,1140-1141 [2019] [internal quotation marks and citations omitted]; see People v Hackett, 167 AD3d1090, 1091-1092 [2018]).
The focus of defendant's argument is that the evidence failed to demonstrate that hecommitted the charged crimes because of inconsistencies in each victim's testimony. As relevanthere, "[a] person is guilty of sexual abuse in the first degree when he or she subjects anotherperson to sexual contact . . . [w]hen the other person is incapable of consent byreason of being physically helpless" (Penal Law § 130.65 [2]). "A person is guiltyof forcible touching when such person intentionally, and for no legitimate purpose. . . forcibly touches the sexual or other intimate parts of another person for thepurpose of degrading or abusing such person, or for the purpose of gratifying the actor's sexualdesire" (Penal Law § 130.52 [1]). Additionally, as charged herein, "[a] person isguilty of endangering the welfare of a child when . . . [h]e or she knowingly acts in amanner likely to be injurious to the physical, mental or moral welfare of a child less than [17]years old" (Penal Law § 260.10 [1]).
At trial, the two victims testified and described various acts of defendant touching andattempting to touch their penises, occurring at specific times and places. They each alsodescribed a game played during scouting trips called "padiddle," during the course of which thelosing player in a round would remove an article of clothing. Each victim described thecircumstances and delay in their disclosure of these incidents. They were each subject tocross-examination, and certain inconsistencies in their accounts were thus revealed. Victim B'smother testified that, after victim B had disclosed to her defendant's conduct, she contacted thepolice. Thereafter, at the directive of the police, she made a controlled phone call to defendant, inwhich he made incriminating statements with respect to both victims.
Defendant denied the allegations of both victims. Defendant testified extensively regardingthe controlled phone call between himself and victim B's mother providing various explanationsfor his statements. On cross-examination, defendant admitted to sending a series of emails inNovember and December 2014 to a scout master in which he also made certain incriminatingstatements. Other witnesses testified as to defendant's positive reputation in the community, andtwo boy scout witnesses testified that they were familiar with "padiddle," but that game did notinvolve removal of clothing.
Regarding defendant's conviction of sexual abuse in the first degree, both victims testifiedconsistently that, while they were asleep, defendant made and attempted to make sexual contactwith them, which established that the victims were physically helpless and unable to consent tosuch conduct (see Penal Law §§ 130.00 [7]; 130.65 [2]; People v Tucker, 149 AD3d 1261,1262 [2017], lv denied 29 NY3d 1087 [2017]; People v Yontz, 116 AD3d 1242, 1243 [2014], lv denied 23NY3d 1026 [2014]). The victims' testimonies were further corroborated by the controlled phonecall between defendant and victim B's mother, in which defendant admitted to attempting totouch victim B and stated that it could have also happened with victim A, as well as the emailmessages sent by defendant to a scout master. Similarly, as to the forcible touching conviction,victim A's testimony that defendant sexually touched him, while defendant was sleeping next tohim, established the requisite contact to support the guilty verdict (see Penal Law§ 130.52 [1]; People vWagner, 72 AD3d 1196, 1197 [2010], lv denied 15 NY3d 779 [2010]). Theinference that defendant's sexual touching was to gratify his sexual desire is "clearly appropriatewhen a nonrelative causes intimate contact with a child" (People v Fuller, 50 AD3d 1171, 1175 [2008] [internal quotationmarks, ellipsis and citations omitted], lv denied 11 NY3d 788 [2008]). As for theconvictions of endangering the welfare of a child, the testimony of each victim regardingdefendant's sexual contact and attempted sexual contact establishes that defendant acted in amanner likely to be injurious to the physical, mental or moral welfare of the victims (seePenal Law § 260.10 [1]; People v Toft, 156 AD3d 1234, 1235 [2017]). Although bothvictims admitted to some inconsistencies in their disclosures of the incidents, theseinconsistencies were minor and did not render their testimonies "inherently unbelievable orincredible as a matter of law" (People v Werkheiser, 171 AD3d at 1301 [internalquotation marks and citation omitted]). Additionally, these issues were thoroughly explored oncross-examination and presented credibility questions to be resolved by the jury (see People v Chaneyfield, 157 AD3d996, 1000 [2018], lv denied 31 NY3d 1012 [2018]; People v Russell, 116 AD3d 1090,1092 [2014]). As such, we find that the verdict was not against the weight of the evidence(see People v Hackett, 167 AD3d at 1093-1094; People v Van Alphen, 167 AD3d 1076, 1078 [2018], lvdenied 32 NY3d 1210 [2019]).
Defendant also claims that he was deprived of the effective assistance of counsel due tocounsel's asserted pretrial and trial errors. "In general, a defendant's constitutional right toeffective representation is met so long as the evidence, the law, and the circumstances of aparticular case, viewed in totality, reveal that the attorney provided meaningful representation"(People v Hackett, 167 AD3d at 1095 [internal quotation marks, brackets, ellipsis andcitations omitted]; see People vRawlinson, 170 AD3d 1425, 1430 [2019]). The burden is on the defendant to"demonstrate the absence of strategic or other legitimate explanations for counsel's choices" (People v Thiel, 134 AD3d 1237,1240 [2015] [internal quotation marks, brackets and citations omitted], lv denied 27NY3d 1156 [2016]; see People vLewis, 138 AD3d 1346, 1348 [2016], lv denied 28 NY3d 1073 [2016]).Defendant first contends that defense counsel improperly waived a Huntley hearingregarding defendant's inculpatory statements during the controlled phone call. The recordindicates, however, that defendant had "extensive discussions" with defense counsel regardingthe controlled call, and defendant instructed counsel to waive the hearing (see People v Henriquez, 3 NY3d210, 217 [2004]; People v Davis, 308 AD2d 343, 345 [2003], lv denied 1NY3d 570 [2003]). Further, the record does not contain any evidence to show that defensecounsel's waiver of a Huntley hearing was not a strategic decision in light of his trialstrategy (see People v Umana, 143AD3d 1174, 1175 [2016], lv denied 29 NY3d 1037 [2017]; People v Thiel,134 AD3d at 1240-1241). To the extent that defendant complains that his counsel failed to objectto the introduction of his statements during the controlled call as involuntarily, counsel cannot befaulted for not making an objection that would have had little chance of success (see People v Caban, 5 NY3d 143,152 [2005]; People v Brown, 169AD3d 1258, 1260 [2019]).
Defendant further contends that his counsel was ineffective in failing to object to theintroduction of defendant's prior bad acts. However, such evidence was admissible to showdefendant's intent and motive, provide necessary background and complete the victims'narratives, and the record shows that County Court balanced the probative value of this testimonyagainst its prejudicial effect (see Peoplev Sorrell, 108 AD3d 787, 792 [2013], lv denied 23 NY3d 1025 [2014]; People v Jones, 101 AD3d 1482,1483 [2012], lv denied 21 NY3d 1017 [2013]). Similarly, certain testimony regarding thevictims' disclosures of sexual conduct was relevant to explain how the victims eventuallydisclosed the sexual conduct and how the investigation started (see People v Ludwig, 24 NY3d221, 231 [2014]; People vGross, 118 AD3d 1383, 1384 [2014], affd 26 NY3d 689 [2016]). In addition,defendant failed to show that defense counsel's failure to object to certain undesirable testimonywas not a purposeful choice made to avoid drawing further attention to it (see People v Rodriguez, 135 AD3d1181, 1185-1186 [2016], lv denied 28 NY3d 936 [2016]). We also do not find thatcounsel was ineffective in failing to move for a trial order of dismissal (see People v LaDuke, 140 AD3d1467, 1471 [2016]). Overall, the record reveals that defense counsel pursued a rational trialstrategy, presented cogent opening and closing statements, vigorously cross-examined thevictims and the People's other witnesses and called witnesses for the defense, thus providingdefendant with meaningful representation (see People v LaDuke, 140 AD3d at1471-1472; People v Echavarria, 53AD3d 859, 864 [2008], lv denied 11 NY3d 832 [2008]; People v Fuller, 50AD3d at 1176; People v Wright, 5AD3d 873, 877 [2004], lv denied 3 NY3d 651 [2004]).
Finally, we are unpersuaded that defendant's sentence, which fell within the statutoryparameters, was harsh or excessive. In addition to considering letters from various communitymembers—who asked for leniency due to their view of defendant's character and his pastgood work—County Court also considered the trial testimony, the presentence report andthe victim impact statements. Given defendant's denial of responsibility for his actions, hisexploitation of a position of trust and the devasting effect on the victims, we find no abuse ofdiscretion or extraordinary circumstance warranting a reduction of the sentence in the interest ofjustice (see People v Horton, 173 AD3d 1338, 1342 [2019]; People v Jaeger,96 AD3d 1172, 1175 [2012], lv denied 19 NY3d 997 [2012]; People v Bartolillo, 47 AD3d1122, 1122 [2008]). Defendant's remaining contentions, to the extent not specificallyaddressed herein, have been examined and found to be lacking in merit.
Garry, P.J., Egan Jr., Clark and Rumsey, JJ., concur. Ordered that the judgment isaffirmed.