People v. Hayes

104 A.D.3d 1050, 962 N.Y.S.2d 443

This text of 104 A.D.3d 1050 (People v. Hayes) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Hayes, 104 A.D.3d 1050, 962 N.Y.S.2d 443 (N.Y. Ct. App. 2013).

Opinion

Spain, J.

Appeal from a judgment of the County Court of Saratoga County (Drago, J.), rendered August 14, 2009, upon a verdict convicting defendant of the crimes of sexual abuse in the first degree (four counts), course of sexual conduct against a child in the second degree, sexual abuse in the second degree (12 counts), sexual abuse in the third degree (four counts) and endangering the welfare of a child.

In January 2008, the victim, then age 15, disclosed to one of her parents that defendant had been subjecting her to sexual contact by touching her breasts and vaginal area. Defendant, a 39-year-old relative of the victim, was employed in a position in which he traveled frequently — for weeks or months at a time— and, when not deployed out of town, he lived with the victim’s family during periods ranging from days to months. Upon defendant’s return to the area from a business trip, he was questioned by investigators with the State Police, received Miranda warnings and made certain admissions; he signed a written statement and was arrested. Subsequently, defendant was indicted on the following 31 criminal counts alleging sexual contact perpetrated against the victim from the winter of 2002-2003, when the victim was 10 years of age, up until the fall of 2007, when the victim was 15 years of age: four counts of first degree sexual abuse (victim under age 11); 10 counts of course of sexual conduct against a child in the second degree (victim less than 11 or 13); 12 counts of second degree sexual abuse (victim under age 14); four counts of third degree sexual abuse (nonconsensual sexual contact); and endangering the welfare of a child.

Defendant’s motion to suppress his statements to police was denied. At the close of proof at trial, upon the People’s motion, count 81 of the indictment charging course of sexual conduct against a child in the second degree was amended (to expand the dates2) and the remaining nine counts of course of sexual conduct against a child were dismissed (i.e., counts 5-7, 9-14). The victim, her mother, the investigators and defendant testified. Defendant was convicted by a jury of the remaining 22 [1052]*1052counts and sentenced to an aggregate prison term of 12 years to be followed by postrelease supervision. Defendant now appeals.

Initially, as the People now concede, defendant’s convictions of sexual abuse in the second degree under counts 15-21 of the indictment must be dismissed as inclusory concurrent counts of amended count 8. Counts 15-21 and amended count 8 cover the same time period: winter 2003-2004 through summer 2005. Amended count 8, course of sexual conduct against a child in the second degree, as charged to the jury,3 required proof that over a period of not less than three months, defendant, being 18 years old or more, engaged in two or more acts of sexual contact with a child less than 13 (see Penal Law §§ 130.00 [3]; 130.80 [1] [b]). Likewise, sexual abuse in the second degree as charged in counts 15-21 required proof that defendant subjected a child less than 14 to sexual contact (see Penal Law § 130.60 [2]). Given that it was, here, “impossible to commit [the greater crime] without concomitantly committing, by the same conduct, [the lesser offense]” (CPL 1.20 [37]; see People v Beauharnois, 64 AD3d 996, 999-1000 [2009], lv denied 13 NY3d 834 [2009]), the sexual abuse counts (15-21) covering the same time period against the then under age 13 victim are lesser included offenses of amended count 8 charging course of sexual conduct against a child (see CPL 300.30 [4]). While defendant did not preserve this issue at trial by objecting to County Court’s failure to submit the lesser charges “in the alternative only” (CPL 300.40 [3] [b]), as a matter of law “[a] verdict of guilty upon the greatest count submitted is deemed a dismissal of every lesser count submitted” (CPL 300.40 [3] [b]; see People v Cordato, 85 AD3d 1304, 1307 [2011], lv denied 17 NY3d 815 [2011]; People v Beauharnois, 64 AD3d at 999-1000; People v Horton, 46 AD3d 1225, 1227 [2007], lv denied 10 NY3d 766 [2008]). Thus, we modify the judgment by reversing defendant’s convictions under counts 15, 16, 17, 18, 19, 20 and 21 for sexual abuse in the second degree, and those counts of the indictment must be dismissed (see People v Grier, 37 NY2d 847, 848 [1975]).

Next, defendant argues that all counts charging sexual abuse in the first degree (counts 1-4) and sexual abuse in the second degree (15-264) should have been dismissed as duplicitous on the ground that while they were facially valid, the victim testi[1053]*1053fied at trial to multiple instances of sexual contact during each charged period (see CPL 200.30 [1] [each count “may charge one offense only”]; People v Black, 65 AD3d 811, 813 [2009], lv denied 13 NY3d 905 [2009]). This claim is unpreserved for our review, as defendant did not specifically raise it by appropriate objection either in his pretrial motion to dismiss the indictment5 or at trial6 (see CPL 470.05), and preservation rules apply to duplicity claims (see People v Becoats, 17 NY3d 643, 650-651 [2011], cert denied 566 US —, 132 S Ct 1970 [2012]). We decline to take corrective action in the interest of justice (see CPL 470.15 [3] [c]) given that the indictment as a whole (implicitly) and the bill of particulars (expressly) reflect that the victim alleged two or more instances of sexual contact7 for the time periods covered in each count of sexual abuse in the first and second degrees (see People v Wright, 22 AD3d 873, 875 [2005], lv denied 6 NY3d 761 [2005]; see also People v Van Ness, 43 AD3d 553, 554 [2007], lv denied 9 NY3d 965 [2007]). The defense, having unsuccessfully raised other duplicity claims prior to trial, nonetheless proceeded to trial without objection (see People v Becoats, 17 NY3d at 651). Had a timely objection on this specific ground been raised, the People would have had an opportunity, prior to or during trial, to amend the indictment or bill of particulars (see CPL 200.70 [1]; 200.95 [8]; 210.20 [3] [a defendant must raise all possible grounds challenging an indictment in his or her pretrial motion]; 255.20).

The balance of defendant’s convictions8 were supported by legally sufficient evidence and were not against the weight of credible evidence (see People v Bleakley, 69 NY2d 490, 495 [1987]). Defendant’s challenge to the legal sufficiency of the evidence focuses on the proof that his sexual contact with the victim’s “sexual or other intimate parts” was “for the purpose [1054]*1054of gratifying sexual desire of either party” (Penal Law § 130.00 [3]), an element of course of sexual conduct against a child in the second degree (count 8), as well as sexual abuse in the first degree (counts 1-4), sexual abuse in the second degree (counts 22-26) and sexual abuse in the third degree (counts 27-30). The victim testified that initially, during the first two specified seasons, defendant touched her breasts and vaginal area with his hands over her clothes and, thereafter, he touched her under her clothes; this occurred in her mother’s or her own bed or in the bathroom, usually when no one else was at home and occasionally when another family member was asleep in another room.

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Bluebook (online)
104 A.D.3d 1050, 962 N.Y.S.2d 443, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-hayes-nyappdiv-2013.