| People v Dickinson |
| 2020 NY Slip Op 02291 [182 AD3d 783] |
| April 16, 2020 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Shannon Dickinson, Appellant. |
Rural Law Center of New York, Castleton (Kelly L. Egan of counsel), forappellant.
Jason M. Carusone, District Attorney, Lake George (Rebecca Nealon of counsel), forrespondent.
Lynch, J. Appeal from a judgment of the County Court of Warren County (Hall Jr.,J.), rendered October 19, 2016, upon a verdict convicting defendant of the crimes ofsexual abuse in the first degree, luring a child and endangering the welfare of achild.
In August 2015, defendant was charged by indictment with criminal sexual act in thefirst degree, criminal sexual act in the second degree, sexual abuse in the first degree,luring a child and endangering the welfare of a child. The indictment stemmed fromdefendant engaging in inappropriate sexual conduct with his then-girlfriend's 13-year-olddaughter (hereinafter the victim) at a hotel in the Town of Queensbury, Warren County.Following a jury trial, defendant was convicted of sexual abuse in the first degree, luringa child and endangering the welfare of a child.[FN*] Defendant moved to set aside theverdict and for recusal, but County Court denied both motions. Thereafter, the courtsentenced defendant, as a persistent felony offender, to concurrent prison terms of 15years to life for his convictions of sexual abuse in the first degree and luring a child, andto a concurrent term of one year for his conviction of endangering the welfare of a child.Defendant appeals.
Initially, defendant contends that his conviction of luring a child is not supported bylegally sufficient evidence and is against the weight of the evidence, and his convictionof sexual abuse in the first degree is also against the weight of the evidence. "Inconducting a legal sufficiency analysis, this Court views the evidence in the light mostfavorable to the People and evaluates whether there is any valid line of reasoning andpermissible inferences which could lead a rational person to the conclusion reached bythe jury on the basis of the evidence at trial and as a matter of law satisfy the proof andburden requirements for every element of the crime charged" (People v Flower, 173 AD3d1449, 1450 [2019] [internal quotation marks and citations omitted], lvdenied 34 NY3d 931 [2019]; see People v Robinson, 156 AD3d 1123, 1124 [2017],lv denied 30 NY3d 1119 [2018]). In contrast, "[w]hen undertaking a weight ofthe evidence review, we must first determine whether, based on all the credible evidence,a different finding would not have been unreasonable and then, if not, weigh the relativeprobative force of conflicting testimony and the relative strength of conflictinginferences that may be drawn from the testimony to determine if the verdict is supportedby the weight of the evidence" (People v Kelsey, 174 AD3d 962, 963 [2019] [internalquotation marks, brackets and citations omitted], lv denied 34 NY3d 982 [2019];see People v Butkiewicz,175 AD3d 792, 793 [2019], lv denied 34 NY3d 1076 [2019]).
As charged in the indictment, to convict defendant of luring a child, the People hadto show that he "lure[d] a child into a . . . building . . . for thepurpose of committing" the crime of criminal sexual act in the first degree (Penal Law§ 120.70 [1]; see § 130.50 [1]). A person intends tocommit criminal sexual act in the first degree when he or she intends to "engage[ ] in oralsexual conduct or anal sexual conduct with another person . . . [b]y forciblecompulsion" (Penal Law § 130.50 [1]). To convict defendant of sexualabuse in the first degree, the People were required to show that he "subject[ed] anotherperson to sexual contact . . . [b]y forcible compulsion" (Penal Law§ 130.65 [1]). "Sexual contact" is defined as "any touching of the sexual orother intimate parts of a person for the purpose of gratifying sexual desire of either party"(Penal Law § 130.00 [3]).
At trial, the victim testified that she was born in December 2001. As to the incident,the victim testified that on July 28, 2015, defendant picked her up and they went to thehotel. She stated that she was wearing black and pink shorts and a white tank top. Ontheir way, defendant stopped at a liquor store, where he purchased alcohol, and at aDollar Store, where the victim purchased Gatorade to mix with the alcohol. According tothe victim, defendant handed her two shooters filled with vodka, which she drank. At thehotel, defendant and the victim got a handicapped accessible room because defendant hasa disability and was using a wheelchair. Once in the room, defendant made alcoholicdrinks, which the victim drank, they ordered pizza and listened to music. After drinkingfive or six cups, the victim felt sick and vomited. She then fell asleep on the bed whiledefendant was sitting in his wheelchair across the room. The victim further testified that,at some point, she woke up and observed that defendant was now in bed next to her,without his shirt, and that he began touching her intimate part with his finger and thenwith his tongue. The victim told defendant to stop and kicked his head, but, since shewas still feeling sick, she "passed out again." According to the victim, when she woke upagain, she observed that defendant was still next to her and that she was not wearing anyclothes. She then got out of bed, grabbed extra clothes from the bag that she had broughtand messaged her friend to ask him if she could come to his house. The victim alsoobserved that she had some vaginal bleeding.
Thereafter, in the early morning of July 29, 2015, defendant drove the victim to thefriend's house. The victim explained that she disclosed what had happened to the friend,as well as to her other friends. The victim also went to the police station and disclosedwhat had occurred. The victim acknowledged that she had gone to counseling andreceived in-patient treatment several times in the past due to her depression and otherharmful behaviors. The victim also admitted that she had previously alleged that herfather sexually abused her, but later recanted those allegations. She explained that thoseallegations of abuse against the father were true, but she recanted them because she didnot want to end up in foster care. She also said that she had previously accused anothermale of touching her, but that she made those allegations when she was three years oldand under her father's direction.
Various witnesses corroborated parts of the victim's testimony. The victim's friendtestified confirming that the victim messaged him and that, when she came over the nextmorning, she was crying and told him that defendant had touched her. The testimonyfrom the front desk managers at the hotel confirmed that defendant and a young girlchecked into the hotel and that, after they checked out, there was vomit in their room.The owner of the liquor store also testified, confirming defendant's visit to the liquorstore on the day of the incident, which was captured on the store's security camera. Twoinmates at a correctional facility, who met defendant in jail, also testified. The inmatesstated that defendant admitted to inappropriately touching the victim with his fingers atthe hotel. Both inmates were cross-examined regarding their extensive criminalhistory.
A sexual assault nurse examiner (hereinafter SANE) testified that she conducted asexual assault examination of the victim on July 30, 2015. The SANE noted that thevictim claimed memory loss resulting from alcohol consumption. The victim alsoconsistently described how and where the incident occurred. After the examination, theSANE noted that external trauma to the victim's body, as well as a small amount ofbleeding, was consistent with the victim's description of the incident. The SANE furthertestified that the victim told her she had only changed her shirt since the assault, and theSANE collected the victim's clothing, including underwear and pants—but not theshorts that the victim testified to wearing at the time of the incident. A forensic scientistwith the State Police testified concerning the DNA analysis that she performed on thevictim's clothing that was recovered during the SANE's examination. The DNA testingrevealed that defendant was the major contributor to the profiles from the swabs of theinside and outside of the underwear waistband, the inside and outside of the pantswaistband and the cutting from the crotch area of the pants. The forensic scientistexplained that being the major contributor meant that defendant and his biologicalpaternal relatives could not be excluded as being major contributors to the DNA profilestested. However, due to insufficient genetic information, no comparisons could be madeto the minor contributors to these profiles. Finally, a profile from the swabs of the insideof the pants crotch area was consistent with the DNA from at least four male donors, sono comparisons could be made.
An investigator with the State Police testified that he took the victim's statement andasked her to make a controlled call to defendant. During the controlled call, theinvestigator heard defendant say, in relation to taking the victim to the hotel, that it was"stupid" and that if she reported it, she would go to foster care. The investigator furthertestified that he conducted a traffic stop of defendant and asked him to come to thebarracks, where he then conducted an interview. During the interview, defendantadmitted that he took the victim to the hotel because it was very hot outside and that thepair "[h]ung out and watched TV." Defendant initially denied purchasing alcohol thatnight, but subsequently admitted to purchasing a bottle of vodka and some vodkashooters after being shown security footage from the store. He denied that the victimdrank the alcohol and, when asked what happened during the night, he stated, "I don'tknow."
For his part, defendant testified that he had a disability from paraplegia and had nomovement from the waist down. He stated that he first met the victim when he starteddating her mother and has known the victim for about two to three years. As to theincident, defendant testified that he went with the victim to the hotel because she wantedto be in air conditioning. According to defendant, the victim was wearing shorts and atank top. Before he checked in at the hotel, he went to the liquor store and purchased fourshooters and a bottle of vodka, while the victim went into the Dollar Store and boughtcandy and Gatorade. He stated that no alcohol was consumed before the two arrived atthe hotel and that he alone consumed the vodka and the shooters at the hotel. Defendantthen went to sleep around 10:00 p.m. or 11:00 p.m. that night, but, around midnight, hewoke up to vomit. Defendant further testified that, in the morning, he had a conversationwith the victim that resulted in the victim being very upset with him. Defendant deniedever engaging in sexual activity with the victim or making statements to the inmates.
Defendant contends that the evidence was legally insufficient to convict him ofluring a child—which required him to have an intent to commit the underlyingcrime of criminal sexual act in the first degree—since he was acquitted of thecrime of criminal sexual act in the first degree and there was no other evidence of hisintent to commit the underlying crime. We disagree. As defendant acknowledges, inorder to find him guilty of luring a child, the jury had to find that he had an intentto commit the crime of criminal sexual act in the first degree, not that he actuallycommitted the underlying crime (see Penal Law § 120.70 [1]). Here,defendant's intent to "engage[ ] in oral sexual conduct . . . with [the victim]. . . [b]y forcible compulsion" (Penal Law § 130.50 [1]) can beinferred from the testimony, as well as physical and circumstantial evidence, that hebrought the victim to a hotel room with one bed, purchased alcohol and had the victimdrink that alcohol before and after arriving at the hotel, was lying next to the victim inthe bed and engaged in inappropriate sexual activity with the victim (see People vBrown, 251 AD2d 694, 695 [1998], lv denied 92 NY2d 1029 [1998];People v Roe, 235 AD2d 950, 952 [1997], lv denied 89 NY2d 1099[1997]). Although the jury ultimately determined that defendant did not engage in oralsexual contact with the victim—effectively rejecting her testimony that he did (see People v Bush, 14 AD3d804, 804-805 [2005], lv denied 4 NY3d 852 [2005])—suchdetermination did not preclude the jury from finding that he intended to engage in suchconduct when he brought the victim to the hotel room. Intent may be inferred fromdefendant's conduct and the surrounding circumstances (see People v Smith, 79NY2d 309, 315 [1992]; Peoplev McCloud, 121 AD3d 1286, 1287 [2014], lv denied 25 NY3d 1167[2015]). Viewing this evidence in light most favorable to the People, we find that theverdict as to luring a child is supported by legally sufficient evidence (see People v Horton, 173AD3d 1338, 1340 [2019], lv denied 34 NY3d 933 [2019]; People v Kalina, 149 AD3d1264, 1266 [2017], lv denied 29 NY3d 1092 [2017]).
Turning next to the weight of the evidence, although a different verdict would nothave been unreasonable, we find that the verdict as to the crimes of luring a child andsexual abuse in the first degree was not against the weight of the evidence. The victimtestified to defendant providing her alcohol and then to sexually touching her. Thevictim's account of the events was corroborated by the testimony of the friend, the hotel'sfront desk managers, the liquor store owner and the SANE, who stated that the victim'sinjuries were consistent with her description of the incident. Additionally, two jailinmates testified that defendant admitted to engaging in inappropriate sexual conductwith the victim. Although the victim's testimony as to what she wore at the time of theincident differed from what she had disclosed to the SANE, and the victim had a historyof mental health issues and previously recanted allegations of sexual assault she hadmade against other individuals, these issues were thoroughly explored during hercross-examination, and we cannot say that her testimony is incredible as a matter of law(see People v Butkiewicz,175 AD3d 792, 795 [2019], lv denied 34 NY3d 1076 [2019]; People v Wright, 155 AD3d1452, 1454 [2017], lv denied 30 NY3d 1121 [2018]). Additionally, althoughdefendant's testimony differed from that of the victim and he provided explanations as tohow his DNA could have ended up on her clothes, this presented a credibilitydetermination for the jury to resolve (see People v Kiah, 156 AD3d 1054, 1056 [2017], lvdenied 31 NY3d 984 [2018]; People v Gathers, 47 AD3d 959, 960 [2008], lvdenied 10 NY3d 863 [2008]; People v Allen, 13 AD3d 892, 894 [2004], lvdenied 4 NY3d 883 [2005]). Based on the foregoing, we find the verdict as to theseconvictions is supported by the weight of the evidence (see People v Russell, 116AD3d 1090, 1092 [2014]; People v Weber, 40 AD3d 1267, 1268 [2007], lvdenied 9 NY3d 927 [2007]).
Next, defendant contends that County Court erroneously admitted DNA reports intoevidence because the tested items were allegedly not the items that the victim wore at thetime of the incident. As defendant concedes, he failed to preserve this contention becausehe did not object to the admission of the DNA reports on the specific ground he nowraises on appeal (see CPL 470.05 [2]; People v Peele, 73 AD3d 1219, 1221 [2010], lvdenied 15 NY3d 894 [2010]). Were this argument preserved, we would find that thePeople provided sufficient assurances of the identity and unchanged condition of victim'sclothing that was collected by the SANE and given to the forensic scientist, and anydiscrepancies in the victim's description of what she was wearing on the day of theincident go to the weight of the evidence and not to its admissibility (see People v Hawkins, 11NY3d 484, 494 [2008]; People v Inman, 134 AD3d 1434, 1436 [2015], lvdenied 27 NY3d 999 [2016]; People v Shoga, 89 AD3d 1225, 1226 [2011], lvdenied 18 NY3d 886 [2012]). Relatedly, defendant failed to preserve his contentionthat the SANE's testimony as to what the victim had disclosed to wearing at the time ofthe incident was hearsay. Were this argument preserved, we would find that this questionhad the dual purpose of assisting in the investigation of the crime and the care andtreatment of the victim's injuries, and, as such, the victim's responses were properlyadmitted as an exception to the hearsay rule (see People v Blackman, 90 AD3d 1304, 1309 [2011], lvdenied 19 NY3d 971 [2012]; People v Rogers, 8 AD3d 888, 892 [2004]).
Defendant also acknowledges that he failed to preserve his contention that theprosecutor engaged in misconduct when he misrepresented the results of the DNAanalysis by stating that defendant was a "major contributor" to certain DNA profilestested (see CPL 470.05 [2]; People v Andrade, 172 AD3d 1547, 1553 [2019], lvdenied 34 NY3d 928 [2019]). Were this issue properly preserved, we would find thatthe prosecutor's statements constituted fair comment on the evidence, as they were basedon the DNA reports as well as the testimony of the forensic examiner (see People v Stasiak, 25 AD3d1025, 1026-1027 [2006]; People v Jones, 283 AD2d 665, 668 [2001], lvdenied 96 NY2d 903 [2001]).
We are also unpersuaded by defendant's contention that he was deprived of theeffective assistance of counsel because of his counsel's alleged failure to make certainpretrial motions or objections at trial. "A claimed violation of the constitutional right tothe effective assistance of counsel will not survive judicial scrutiny so long as theevidence, the law, and the circumstances of a particular case, viewed in totality and as ofthe time of the representation, reveal that the attorney provided meaningfulrepresentation" (People vSaunders, 176 AD3d 1384, 1391 [2019] [internal quotation marks and citationsomitted]; see People vWilson, 164 AD3d 1012, 1019 [2018]). First, contrary to defendant's contention,defense counsel was not ineffective for failing to object to the admission of the DNAreports, the hearsay statements within the reports or to characterizations of the DNAresults made by the prosecutor because, as set forth above, such objections would havelittle or no chance of success (see People v Caban, 5 NY3d 143, 152 [2005]; People v Hackett, 167 AD3d1090, 1095 [2018]). Moreover, as defense counsel did not have a colorable basisupon which to request a Frye hearing regarding the DNA methods employed, hisfailure to do so does not amount to ineffective assistance (see People v VanDeusen, 129AD3d 1325, 1327 [2015], lv denied 26 NY3d 972 [2015]; comparePeople v Wilson, 164 AD3d at 1019-1021). Defendant further contends that defensecounsel failed to request suppression of defendant's statements (see CPL 710.30)or a Huntley hearing. However, the failure to request a particular hearing, withoutmore, does not constitute ineffective assistance, and there is no evidence suggesting thatdefendant's statements were involuntary (see People v Smith, 89 AD3d 1148, 1149 [2011], lvdenied 19 NY3d 968 [2012]; People v Perea, 27 AD3d 960, 961 [2006]; compare People v Carnevale,101 AD3d 1375, 1379 [2012]). Overall, the record reflects that defense counselopposed the People's motion to compel a DNA sample, advanced several motions,effectively cross-examined the People's witnesses and obtained acquittals of the top twocounts of the indictment. As such, we are satisfied that defendant received meaningfulrepresentation (see People vHouze, 177 AD3d 1184, 1188-1189 [2019], lv denied 34 NY3d 1159[2020]; People v Mamadou,172 AD3d 1524, 1526 [2019], lv denied 33 NY3d 1106 [2019]).
Lastly, we are unpersuaded that County Court was biased or abused its discretion insentencing defendant. The record contains no evidence of judicial bias or a basis forrecusal (see People vSwartz, 160 AD3d 1296, 1297 [2018]). The court properly sentenced defendantas a persistent felony offender because he was convicted of three prior felonies thatresulted in him being incarcerated for more than one year on each conviction (seePenal Law § 70.10 [1]; People v O'Connor, 6 AD3d 738, 740 [2004], lvdenied 3 NY3d 645 [2004]). Moreover, the court properly determined thatdefendant's "history and character" and "the nature and circumstances of his criminalconduct are such that extended incarceration and lifetime supervision of [him] arewarranted to best serve the public interest" (CPL 400.20 [1] [b]). The court addresseddefendant's criminal history that spans for 26 years—including 16 arrests, 12convictions in New York as well as one federal conviction and violations ofparole—and also stated that defendant "is an incorrigible and intractableindividual whose life style is inimical to life in a law abiding society." Accordingly, wecannot conclude that the court abused its discretion in sentencing defendant as apersistent felony offender (see People v Swartz, 160 AD3d at 1296; People vO'Connor, 6 AD3d at 741). Considering defendant's extensive criminal history, hislack of remorse for the crimes that he committed and the impact of such crimes on the13-year-old victim, we find that the ultimate sentence was not harsh or excessive (seePeople v Horton, 173 AD3d at 1342; People v Wicks, 73 AD3d 1233, 1237 [2010], lvdenied 15 NY3d 857 [2010]). Defendant's remaining contentions, to the extent thatthey are not addressed herein, have been examined and found to be without merit.
Garry, P.J., Mulvey, Aarons and Reynolds Fitzgerald, JJ., concur. Ordered that thejudgment is affirmed.
Footnote *:Defendant was acquittedof the charges of criminal sexual act in the first and second degrees.