People v. Parnell

34 Misc. 3d 77
CourtAppellate Terms of the Supreme Court of New York
DecidedDecember 29, 2011
StatusPublished

This text of 34 Misc. 3d 77 (People v. Parnell) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court 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. Parnell, 34 Misc. 3d 77 (N.Y. Ct. App. 2011).

Opinion

OPINION OF THE COURT

Memorandum.

Ordered that the judgment of conviction is affirmed; and it is further, ordered that the order is affirmed, without costs.

The People filed an information charging defendant with three counts of forcible touching (Penal Law § 130.52), three counts of sexual abuse in the second degree (Penal Law § 130.60 [2]), three counts of sexual abuse in the third degree (Penal Law § 130.55), two counts of endangering the welfare of a child (Penal Law § 260.10 [1]), aggravated harassment in the second [80]*80degree (Penal Law § 240.30 [1] [a]), and two counts of harassment in the second degree (Penal Law § 240.26 [1]), based on his conduct toward a 13-year-old male that involved sexual contact, exhibiting to the child a sexually explicit video, and other communications of an explicitly sexual nature. At the commencement of the jury trial, the Criminal Court granted the People’s motion to dismiss the two counts of harassment in the second degree. After the trial, which included the victim’s narrative testimony of defendant’s sexual conduct, the admission into evidence of the video which had been recovered from a laptop computer that defendant had produced to the police as his personal property, and the testimony of a forensic psychologist on the subject of adolescent sexual abuse syndrome, the jury convicted defendant of all the remaining counts. After sentence was imposed and a hearing held, defendant was designated a level three sex offender.

On appeal, defendant argues first that playing the video repeatedly to the jury (three times according to defendant, but only twice according to the record) served only to inflame the jury’s passions and was of questionable evidentiary value given that it was not proved that it was defendant who had committed the sexual acts depicted therein. However, the victim asserted that defendant had informed him that defendant was the “actor” in the video, which depicted a male masturbating and performing other acts of a sexually explicit nature. In any event, it is irrelevant, for the commission of the crime of endangering the welfare of a child, whether the identity of the person in the video is known. Although played more than once to the jury, the video evidence was the basis of one of the two counts of endangering the welfare of a child (e.g. People v Velez, 190 Misc 2d 206 [Sup Ct, Queens County 2002]), and, as a general rule, photographs and similar evidence are admissible

“if they tend to prove or disprove a disputed or material issue, to illustrate or elucidate other relevant evidence, or to corroborate or disprove some other evidence offered or to be offered . . . [and] should be excluded only if [their] sole purpose is to arouse the emotions of the jury and to prejudice the defendant” (People v Pobliner, 32 NY2d 356, 369-370 [1973]; see e.g. People v Stebbins, 280 AD2d 990 [2001]).

The record does not indicate that the defense timely objected to the second playing of the video, and defendant does not deny [81]*81that playing such a video to a 13-year-old commits the offense. Further, the Criminal Court instructed the jury that it was to consider the evidence solely in relation to only one of the two counts of endangering the welfare of a child, and it is presumed that the jury understood and followed this instruction (People v Berg, 59 NY2d 294, 299-300 [1983]; People v Bobrowsky, 23 Misc 3d 137[A], 2009 NY Slip Op 50862[U] [App Term, 9th & 10th Jud Dists 2009]). Having raised no objection to the charge, and having requested no amendments or amplifications, defendant is deemed to have acquiesced to the charge as given (People v Gega, 74 AD3d 1229 [2010]; People v Andujar, 180 AD2d 743 [1992]).

After the close of evidence, and immediately before summations, the defense purported to have discovered, by reference to a Web page connected to the victim, that the victim had admitted that he was of consenting age when allegedly victimized by defendant’s conduct. The defense sought to recall the victim to confront him with this evidence. The court did not improvidently exercise its discretion in denying the motion. A trial court is vested with wide latitude to determine the admissibility of evidence, to control the conduct of a trial, and to keep the proof within admissible bounds. Consistent with that authority, a court has discretion to permit or deny a party’s application to reopen the evidentiary portion of a case. Among the factors to be considered are the source and availability of the evidence, its probative significance with respect to material trial issues, and prejudice owing to associated delay in producing the evidence and adjournments to produce it (Lagana v French, 145 AD2d 541 [1988]; see also Feldsberg v Nitschke, 49 NY2d 636, 643 [1980]). Here, the defense failed to exercise due diligence in discovering the evidence which, concededly, had been available prior to the trial. Further, exploring the issue would have required that the child victim testify a second time. Not only would additional testimony be presumptively detrimental to the victim, but, generally, the orderly presentation of proof requires that “every witness be questioned in the first instance on all relevant matters of which he [or she] has knowledge and be excused at the completion of this testimony” in the interest of judicial economy and the ability of counsel to keep the jury’s attention on the salient facts of the case (Feldsberg v Nitschke, 49 NY2d at 643-644).

In any event, the defense failed to establish that the evidence was of sufficient probative value to merit the relief sought. Both [82]*82the victim and his mother testified to the victim’s birth date, and such testimony is competent to prove the fact (People v Scott, 61 AD3d 1348, 1349 [2009]; People v Bolden, 194 AD2d 834, 835 [1993]; People v Bessette, 169 AD2d 876, 877 [1991]). Although the victim’s testimony “contained some contradictions, it was not so incredible as to be unworthy of belief ’ (People v Jackson, 148 AD2d 930 [1989]), and the jury had the opportunity to observe the victim and to determine, in part, from his physical appearance whether his testimony, and that of his mother, as to his date of birth should be credited (see also People v Blodgett, 160 AD2d 1105, 1106 [1990]). Finally, evidence may be excluded if the court deems it to be of limited probative value, too remote or speculative, or if its admission would obscure the main issues or confuse the jury (People v Paixao, 23 AD3d 677 [2005]). Defense counsel did not state that she was offering the evidence to impeach the victim’s general credibility, or even specifically to defeat an element of the offenses, but to establish a motive to falsely accuse defendant as to the entirety of the abusive conduct alleged, a matter that was purely speculative.

We also find no error in admitting the expert testimony, to which the defense, in general, voiced no objection. The expert specifically denied having any knowledge as to the specifics of the accusations against defendant, of the victim’s personal characteristics, the victim’s trial testimony, or of the Penal Law generally. Further, the defense did not object to most of the expert’s testimony that might be construed as applicable to matters bearing on the victim’s overall credibility. Indeed, on cross-examination, defense counsel posed a number of hypotheticals which explored precisely the issues addressed by defendant on the appeal. Thus, these claims are largely unpreserved.

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Cite This Page — Counsel Stack

Bluebook (online)
34 Misc. 3d 77, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-parnell-nyappterm-2011.