| People v Cummings |
| 2020 NY Slip Op 06981 [188 AD3d 1449] |
| November 25, 2020 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Glenn E. Cummings, Appellant. |
John R. Trice, Elmira, for appellant.
Kirk O. Martin, District Attorney, Owego (Cheryl Mancini of counsel), for respondent.
Lynch, J.P. Appeal from a judgment of the County Court of Tioga County (Keene, J.),rendered April 20, 2018, upon a verdict convicting defendant of the crimes of criminal sexual actin the second degree, rape in the second degree, sexual abuse in the third degree and endangeringthe welfare of a child.
In February 2017, the 14-year-old daughter of defendant's girlfriend (hereinafter the victim)reported to a friend that defendant had sexually abused her. Authorities commenced aninvestigation and defendant met with police for an interview. During the interview, defendantsigned a Miranda waiver and initially denied any sexual contact with the victim buteventually admitted to engaging in inappropriate sexual contact with her. Defendant wasthereafter charged by indictment with criminal sexual act in the second degree, rape in the seconddegree, sexual abuse in the third degree and endangering the welfare of a child. Prior to trial,defendant filed an omnibus motion seeking, among other things, to suppress the statements thathe gave to police. Following a suppression hearing—during which defendant argued thatthe Miranda waiver was invalid and he was under the influence of drugs and alcohol atthe time of his incriminating statements—County Court denied defendant's motion tosuppress the statements, finding that defendant knowingly, intelligently and voluntarily waivedhis Miranda rights and that he "did not exhibit any signs of being under the influence ofdrugs or alcohol" in the videotaped recording of the interview.
A jury trial ensued, after which defendant was convicted as charged. He was sentenced toconsecutive prison terms of five years with 10 years of postrelease supervision upon eachconviction of criminal sexual act in the second degree and rape in the second degree and to timeserved on the remaining counts, resulting in an aggregate prison term of 10 years. Defendantappeals.
Defendant contends that the verdict is against the weight of the evidence, primarilychallenging the credibility of the victim and asserting that he was impaired at the time of hisinculpatory statements to police. We disagree. When conducting a weight of the evidence review,this Court "must first determine whether, based on all the credible evidence, a different findingwould not have been unreasonable and, if not, then weigh the relative probative force ofconflicting testimony and the relative strength of conflicting inferences that may be drawn fromthe testimony to determine if the verdict is supported by the weight of the evidence" (People v Sanders, 185 AD3d 1280,1284 [2020] [internal quotation marks, brackets and citations omitted], lv denied 35 NY3d 1115[2020]; see People vCallahan, 186 AD3d 943, 943-944 [2020]). In conducting this analysis, "we view theevidence in a neutral light and defer to the jury's credibility assessments" (People v Criss, 151 AD3d 1275,1276 [2017], lv denied 30 NY3d 979 [2017]). As relevant here, the People were requiredto establish that defendant, being at least 18 years old, "engage[d] in oral . . . or analsexual conduct with [the victim when she was] less than [15] years old" (Penal Law§ 130.45 [1]), "engage[d] in sexual intercourse with [the victim when she was] lessthan [15] years old" (Penal Law § 130.30 [1]), "subject[ed] [the victim] to sexualcontact without [her] consent" (Penal Law § 130.55), and "knowingly act[ed] 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 victim testified that she was born in November 2002. She recounted three allegedincidents of sexual abuse by defendant between December 2016 and February 2017, explainingthat she lived with defendant, her mother, a sister and two of defendant's children during thattime. As to an incident that occurred in or around December 2016, the victim testified thatdefendant entered her room while she was doing homework and told her to come to thebathroom, where he locked the doors, told her to sit on the sink, and had vaginal intercourse withher for "five or six minutes." The victim recalled that defendant told her not to tell anyone aboutthe encounter. The victim recounted another encounter in January 2017, explaining thatdefendant walked into the bathroom when she was about to take a shower and told her, "This willonly take a few minutes." She testified that defendant then brought her to his bedroom, lockedthe doors, had her lie on her back and performed oral sex on her. Defendant then told her to geton her stomach and he "put his penis in her behind." With respect to the thirdincident—which allegedly occurred on February 6, 2017—the victim testified thatshe was sitting on the couch when defendant came over, touched her breasts and "[r]ubbed theinside of [her] vagina." According to the victim, defendant also asked her to touch his penis onthat occasion and she complied. The victim testified that the encounter ended when defendant'sson returned home and defendant pushed her away. After this incident, the victim went to schooland told a friend about the encounters. The principal and the police then got involved.
The victim acknowledged on cross-examination that, when she was undergoing a sexualassault examination after the February 2017 incident, she told one of the examining doctors thatdefendant never tried to put his penis in her vagina. She also conceded having told the grand jurythat she was the one who pushed defendant off of her during the February 2017 incident, insteadof the other way around. Additionally, the victim acknowledged that, in November 2015, shefalsely reported to school officials that defendant's son had impregnated her, explaining that shefabricated that allegation because she was afraid to name defendant as the true perpetrator. Thevictim's mother also testified, stating that, in 2015, defendant installed a lock on the inside of twodoors in their bedroom purportedly to deter the children from stealing candy from theirroom.
The People also elicited testimony from Richard Hallett, a police lieutenant who intervieweddefendant on February 6, 2017, and obtained defendant's written statement. In the statement,defendant admitted that he touched the victim's vagina in February 2017 and that he had gottenon top of her in January 2017 and "maybe" engaged in anal sex with her. As to the incident in oraround December 2016, defendant acknowledged that he and the victim were in the bathroomtogether but denied engaging in vaginal intercourse, claiming that he merely placed his penis"between her legs." Hallet testified that defendant did not appear impaired at any point during theinterview, and two other investigators described defendant—who had driven to theinterview without incident—as lucid and oriented when they interacted with him beforethe interview.
A nurse practitioner who conducted a sexual assault examination of the victim on February7, 2017 explained that she took swabs of the victim's breasts, mouth, vagina and rectal area andrecalled seeing "a small amount of irritation" on the victim's labia. Besides that observation, theexamination was otherwise unremarkable. A serologist who tested the swabs revealed that nosemen was found on them, but "prostate specific antigen"—which indicates the presenceof seminal fluid—was found on the anal swab and blood was found in the crotch of thevictim's underwear. A forensic scientist performed a DNA analysis of the evidence obtainedduring the sexual assault examination, finding DNA that matched either defendant or hisbiological paternal relatives in the blood on the victim's underwear. The swabs taken from thevictim's breasts also contained DNA "from at least two donors," with the victim being the majorcontributor and insufficient information to determine the identity of the second donor. As to theprostate specific antigen found on the anal swab, the forensic scientist testified that it contained"a partial mixture profile that was consistent with DNA from at least two male donors," but theidentity of the donors could not be identified.
The People also elicited testimony from a psychiatric social worker, who explained thatsexually abused children often exhibit symptoms of Child Sexual Abuse AccommodationSyndrome (hereinafter CSAAS) (seePeople v Spicola, 16 NY3d 441, 465-466 [2011], cert denied 565 US 942[2011]). The social worker explained that symptoms of CSAAS include "[d]elayed or conflicteddisclosure" and "recantation or retraction" of the allegations. He further revealed that, in histreatment of approximately 3,100 abused children, "all of them delayed in disclosing that theyhad been sexually molested." Finally, the People proffered evidence that defendant was born in1976 and was thus more than 18 years old at the time of the alleged incidents.
Defendant testified on his own behalf, denying the allegations in full. He explained that hechanged the lock on the door that connects the hallway to the bedroom because the mother "wascomplaining about the door not completely shutting or locking." He otherwise denied havingmanipulated the lock on the door that connects the bedroom with the bathroom. With respect tohis inculpatory statements to police, defendant testified that he had consumed heroin, marihuanaand alcohol before the interview, claiming that he was impaired at that time.
Although a different verdict would not have been unreasonable, when weighing the relativeprobative force of the conflicting testimony and the relative strength of conflicting inferences thatmay be drawn therefrom, we conclude that the People proved each element of the charged crimesbeyond a reasonable doubt. With respect to criminal sexual act in the second degree and rape inthe second degree, the age element of these crimes is not in dispute. Although defendantemphasizes certain inconsistencies between the victim's trial testimony and her statements topolice and the grand jury—and notes that she admitted to having fabricated a sexualassault allegation against one of defendant's children—these claims were explored at trialand raised issues of credibility for the jury to resolve (see People v Madsen, 168 AD3d 1134, 1137 [2019]; People v St. Ives, 145 AD3d 1185,1187 [2016], lv denied 29 NY3d 1036 [2017]; People v Simonetta, 94 AD3d 1242, 1244 [2012], lv denied19 NY3d 1029 [2012]). In light of the victim's detailed and unequivocal testimony that defendantengaged in oral, anal and vaginal sex with her—which was generally corroborated byDNA evidence and defendant's statements to police—we find no basis to disturb the jury'sverdict on the charges of criminal sexual act in the second degree and rape in the second degree(see People v Hughes, 114 AD3d1021, 1022 [2014], lv denied 23 NY3d 1038 [2014]; People v Hebert, 68 AD3d 1530,1531 [2009], lv denied 14 NY3d 841 [2010]).
Nor is the verdict on the counts of sexual abuse in the third degree and endangering thewelfare of a child against the weight of the evidence (see People v Youngs, 175 AD3d 1604, 1609 [2019]; People v Charles, 124 AD3d 986,987 [2015], lv denied 25 NY3d 950 [2015]; People v Beauharnois, 64 AD3d 996, 998 [2009], lv denied13 NY3d 834 [2009]). With respect to the former charge, the victim's testimony that defendanttouched her vagina during the February 2017 encounter was generally consistent with thefindings on the sexual assault examination and corroborated by defendant's statements to police.The victim was statutorily unable to consent to that conduct by virtue of her age (seePenal Law § 130.05 [2] [b]; [3] [a]). Although defendant contends that he wasunder the influence of drugs and alcohol when he gave the inculpatory statements to police, ajury is "free to selectively credit and reject any part" of witness testimony (People v Bush, 14 AD3d 804, 805[2005], lv denied 4 NY3d 852 [2005]). Given the independent testimony from threepolice officers that defendant did not appear impaired before or during the interview, the jurycould rationally choose to discredit defendant's claim in that respect. As to endangering thewelfare of the child, the nature of defendant's conduct, his request that the victim keep it a secretand his action of locking the doors establish that he was "aware that [his] conduct may likelyresult in harm to a child" (People v Hitchcock, 98 NY2d 586, 591 [2002] [internalquotation marks, emphasis and citation omitted]). Accordingly, the verdict on all charges issupported by the weight of the evidence.
We also reject defendant's challenge to the severity of the sentence. In that respect, defendantemphasizes certain mitigating factors, including his health ailments, history of substance abuse,difficult upbringing and low score on a risk assessment instrument. Notwithstanding suchmitigating factors, we see no reason to disturb the sentence, which was less than the statutorymaximum (see Penal Law § 70.02 [1] [c]; [3] [c]), in the interest of justice.Contrary to defendant's assertion, the fact that he was offered a plea deal that would have secureda shorter sentence than the one imposed after trial does not, by itself, establish that he waspenalized for exercising his right to trial (see People v Pena, 50 NY2d 400, 412 [1980],cert denied 449 US 1087 [1981]; People v Blond, 96 AD3d 1149, 1154 [2012], lv denied 19NY3d 1101 [2012]). Given the serious nature of the crimes against a vulnerable teenager withwhom defendant lived and his failure to show remorse, we can find no abuse of discretion orextraordinary circumstances that would warrant a modification of the sentence in the interest ofjustice (see People v Horton, 173AD3d 1338, 1342 [2019], lv denied 34 NY3d 933 [2019]; People v Blond,96 AD3d at 1154).
Mulvey, Devine, Pritzker and Colangelo, JJ., concur. Ordered that the judgment isaffirmed.