People v. Kalina

149 A.D.3d 1264, 52 N.Y.S.3d 523

This text of 149 A.D.3d 1264 (People v. Kalina) 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. Kalina, 149 A.D.3d 1264, 52 N.Y.S.3d 523 (N.Y. Ct. App. 2017).

Opinion

Egan Jr., J.

Appeal from a judgment of the County Court of Sullivan County (LaBuda, J.), rendered July 15, 2014, upon a verdict convicting defendant of the crimes of predatory sexual assault against a child and incest in the first degree.

In November 2013, defendant was indicted and charged with predatory sexual assault against a child and incest in the first degree. The charges stemmed from allegations that defendant, [1265]*1265while being 18 years old or more, engaged in oral sex with his half sister (hereinafter the victim) on numerous occasions when the victim was less than 13 years old. Following a jury trial, defendant was convicted as charged, and County Court thereafter sentenced defendant to a prison term of 25 years to life upon his conviction of predatory sexual assault and imposed a concurrent prison term of five years plus five years of post-release supervision upon his conviction of incest in the first degree. Defendant now appeals.

Defendant initially contends that the verdict was not supported by legally sufficient evidence and, further, was against the weight of the evidence. Specifically, defendant asserts that the People failed to establish both his familial relationship with the victim and their respective ages at the time of the alleged offenses. Defendant further argues that the victim was not a credible witness and, therefore, the convictions cannot stand. We disagree.

As relevant here, “[a] person is guilty of predatory sexual assault against a child when, being [18] years old or more, he or she commits the crime of. . . course of sexual conduct against a child in the first degree . . . , and the victim is less than [13] years old” (Penal Law § 130.96). In this regard, “[a] person is guilty of course of sexual conduct against a child in the first degree when, over a period of time not less than three months in duration ... he or she, being [18] years old or more, engages in two or more acts of sexual conduct, which include at least one act of. . . oral sexual conduct. . . , with a child less than [13] years old” (Penal Law § 130.75 [1] [b]). Oral sexual conduct, in turn, includes “contact between the mouth and the penis” (Penal Law § 130.00 [2] [a]).

A person is guilty of incest in the first degree when, insofar as is relevant here, “he or she commits the crime of . . . criminal sexual act in the first degree . . . against a person whom he or she knows to be related to him or her . . . as a[ ] . . . brother or sister of either the whole or half blood” (Penal Law § 255.27). A person commits the crime of criminal sexual act in the first degree when he or she, among other things, “engages in oral sexual conduct . . . with another person . . . [w]ho is less than [13] years old and the actor is [18] years old or more” (Penal Law § 130.50 [4]). Consistent with the provisions of Penal Law § 255.30 (2), “[a] person shall not be convicted of incest . . . solely upon the testimony of the other party unsupported by other evidence tending to establish . . . that the defendant was a relative of the other party.”

Defendant’s primary argument — that the People failed to es[1266]*1266tablish both his familial relationship to the victim and their respective ages at the time of the alleged incidents — is entirely lacking in merit. The victim testified that defendant is her half brother, and defendant readily admitted in his written statement, which was entered into evidence at trial, that the victim is his half sister. Defendant’s written statement also bears his date of birth (revealing that he was born in 1988) and establishes that the last of the approximately five or seven occasions upon which he admittedly engaged in sexual conduct with the victim occurred in August 2008 or September 2008 — a point in time when defendant clearly was 18 years old or more. The victim, in turn, testified that she turned nine years old in November 2006

Free access — add to your briefcase to read the full text and ask questions with AI

Related

People v. Manchester
123 A.D.3d 1285 (Appellate Division of the Supreme Court of New York, 2014)
People v. Nicholas
130 A.D.3d 1314 (Appellate Division of the Supreme Court of New York, 2015)
People v. Monroe
134 A.D.3d 1138 (Appellate Division of the Supreme Court of New York, 2015)
People v. Scaringe
137 A.D.3d 1409 (Appellate Division of the Supreme Court of New York, 2016)
People v. Lancaster
143 A.D.3d 1046 (Appellate Division of the Supreme Court of New York, 2016)
People v. Bullock
145 A.D.3d 1104 (Appellate Division of the Supreme Court of New York, 2016)
People v. Guay
959 N.E.2d 504 (New York Court of Appeals, 2011)
People v. Oathout
989 N.E.2d 936 (New York Court of Appeals, 2013)
People v. Guay
72 A.D.3d 1201 (Appellate Division of the Supreme Court of New York, 2010)
People v. Brown
114 A.D.3d 1017 (Appellate Division of the Supreme Court of New York, 2014)
People v. Fiorino
130 A.D.3d 1376 (Appellate Division of the Supreme Court of New York, 2015)

Cite This Page — Counsel Stack

Bluebook (online)
149 A.D.3d 1264, 52 N.Y.S.3d 523, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-kalina-nyappdiv-2017.