People v. Milford

118 A.D.3d 1166, 987 N.Y.S.2d 696

This text of 118 A.D.3d 1166 (People v. Milford) 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. Milford, 118 A.D.3d 1166, 987 N.Y.S.2d 696 (N.Y. Ct. App. 2014).

Opinion

Egan Jr., J.

Appeal from a judgment of the County Court of Otsego County (Lambert, J.), rendered April 3, 2012, upon a verdict convicting defendant of the crime of sexual abuse in the first degree (two counts).

Defendant was indicted and charged with three counts of sexual abuse in the first degree based upon allegations that he engaged in inappropriate touching with victim A (born in November 2001) on or about October 2, 2010 and engaged in similar conduct with respect to victim B (born in October 1999) on September 5, 2010 and October 18, 2010. Victim A spontaneously disclosed the inappropriate touching to her mother on the morning following the October 2010 incident; victim B revealed the subject incidents in response to questioning by her mother, which, in turn, was prompted by the mother’s discovery of the allegations made against defendant regarding victim A. As a result of the manner in which victim B’s disclosure came to light, defendant included—as part of his pretrial omnibus motion—a request for a “taint” hearing to determine whether victim B’s testimony had been contaminated by her mother’s questioning. Defendant also moved, insofar as is relevant here, to sever the counts of the indictment pursuant to CPL 200.20 (3). County Court denied both of these applications.

Following a jury trial, at which victims A and B, among others, appeared and testified, the jury found defendant guilty of two counts of sexual abuse in the first degree—pertaining to the October 2010 incident regarding victim A and the September 2010 incident regarding victim B—and not guilty of the remaining count. Defendant thereafter was sentenced upon each count to a prison term of seven years followed by five years of post-release supervision—said sentences to run consecutively. This appeal by defendant ensued.

We affirm. Initially, we reject defendant’s assertion that County Court abused its discretion in denying his motion to sever the counts of the indictment. Although charges arising out of different criminal transactions are properly joinable where, as here, “such offenses are defined by the same or similar statutory provisions and consequently are the same or similar in law” (CPL 200.20 [2] [c]; see People v Raucci, 109 AD3d 109, 117 [2013], lv denied 22 NY3d 1158 [2014]; People v Rogers, 94 AD3d 1246, 1248 [2012], lv denied 19 NY3d 977 [2012]; People v Hunt, 39 AD3d 961, 962 [2007], lv denied 9 NY3d 845 [2007]; People v Reome, 309 AD2d 1067, 1068 [2003], lv denied [1168]*11682 NY3d 805 [2004]), a court nonetheless may—“in the interest of justice and for good cause shown”—exercise its discretion and order that such offenses be tried separately (CPL 200.20 [3]; see People v Pirillo, 78 AD3d 1424, 1425 [2010]; People v Reome, 309 AD2d at 1068). Good cause, in turn, may be established by demonstrating, among other things, that there is “[substantially more proof on one or more such joinable offenses than on others and there is a substantial likelihood that the jury would be unable to consider separately the proof as it relates to each offense” (CPL 200.20 [3] [a]; accord People v Reome, 309 AD2d at 1068; see People v Cox, 298 AD2d 461, 461 [2002], lv denied 99 NY2d 581 [2003]). Simply put, defendant failed to make such a showing here.

As a starting point, defendant’s motion merely asserted—in an entirely conclusory fashion—that “there [might] be substantially more proof with respect to one complainant than the other.” This unsubstantiated assertion was belied by the subsequent proof at trial, where the quantum of evidence adduced as to each victim proved to be substantially similar. More to the point, the evidence as to each victim was “separately presented, uncomplicated and easily distinguishable” (People v Lakatosz, 59 AD3d 813, 815 [2009], lv denied 12 NY3d 917 [2009] [internal quotation marks and citation omitted]; accord People v Nickel, 14 AD3d 869, 870 [2005], lv denied 4 NY3d 834 [2005]), and the fact that the jury acquitted defendant of one of the counts of the indictment while convicting him of the remaining counts demonstrated the jury’s ability to separately consider and evaluate the proof as to each of the victims/incidents (see People v Hunt, 39 AD3d at 962; People v Davis, 19 AD3d 1007, 1007 [2005]; People v Nickel, 14 AD3d at 870; People v Reome, 309 AD2d at 1068; People v Boyea, 222 AD2d 937, 939 [1995], lv denied 88 NY2d 934 [1996]). Under these circumstances, County Court did not abuse its discretion in denying defendant’s motion to sever.

We reach a similar conclusion with respect to the requested taint hearing. Notwithstanding the absence of “express statutory authority for a hearing to determine whether the testimony of [a] child witness [ ] has been tainted by suggestive interviewing techniques,” a court nonetheless may—“[u]pon a proper showing” by the defendant—direct that a pretrial taint hearing be held (People v Nickel, 14 AD3d at 870-871). Noticeably absent from defendant’s motion papers was any indication that victim B’s mother engaged in leading or otherwise suggestive questioning of victim B regarding any inappropriate contact that she may have had with defendant. Moreover, “any suggestibility, [1169]*1169the manner of questioning and its effects on [victim B’s] testimony could be, and was, addressed on cross-examination of [victim B and her mother]” at trial (id. at 871; see People v Weber, 25 AD3d 919, 923 [2006], lv denied 6 NY3d 839 [2006]). Accordingly, County Court did not abuse its discretion in denying defendant’s request for a pretrial taint hearing (see People v Pulvino, 115 AD3d 1220, 1222 [2014]; People v Thompson, 59 AD3d 1115, 1116 [2009], lv denied 12 NY3d 860 [2009]; People v Kemp, 251 AD2d 1072, 1072-1073 [1998], lv denied 92 NY2d 900 [1998]; cf. People v Montalvo, 34 AD3d 600, 601 [2006], lv denied 8 NY3d 883 [2007]).

Defendant’s assertion that the convictions are against the weight of the evidence is equally unpersuasive. Insofar as is relevant here, a person is guilty of sexual abuse in the first degree “when he or she subjects another person to sexual contact . . . [w]hen the other person is less than [11] years old” (Penal Law § 130.65 [3]). Sexual contact, in turn, is defined as “any touching of the sexual or other intimate parts of a person for the purpose of gratifying sexual desire of either party,” which “includes . . . the touching of the victim by the actor, whether directly or through clothing” (Penal Law § 130.00 [3]). In this regard, “the case law makes clear that [a]n inference of sexual gratification may be drawn from the conduct of a defendant who has intimate contact with a child to whom he or she is not related” (People v Brown, 114 AD3d 1017, 1018 [2014] [internal quotation marks and citation omitted]).

The record established that, in October 2010, victim A resided with her mother, her mother’s now ex-boyfriend and the ex-boyfriend’s two sons. On the night in question, defendant attended a birthday party for the ex-boyfriend at victim A’s residence and was observed watching television with all four children in the bedroom occupied by victim A and her sister. At the end of the evening, victim A and her sister went to sleep in their shared bedroom, while defendant and another male family friend, both of whom apparently were too intoxicated to drive to their respective homes, spent the night in the living room of the residence.

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Bluebook (online)
118 A.D.3d 1166, 987 N.Y.S.2d 696, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-milford-nyappdiv-2014.