People v. Shook

294 A.D.2d 710, 743 N.Y.S.2d 573, 2002 N.Y. App. Div. LEXIS 5070
CourtAppellate Division of the Supreme Court of the State of New York
DecidedMay 16, 2002
StatusPublished
Cited by27 cases

This text of 294 A.D.2d 710 (People v. Shook) 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. Shook, 294 A.D.2d 710, 743 N.Y.S.2d 573, 2002 N.Y. App. Div. LEXIS 5070 (N.Y. Ct. App. 2002).

Opinion

Cardona, P.J.

Appeal from a judgment of the County Court of Columbia County (Czajka, J.), rendered November 14, 2000, upon a verdict convicting defendant of the crimes of sexual abuse in the first degree (three counts) and endangering the welfare of a child.

Defendant was indicted for sexual abuse in the first degree (three counts) and endangering the welfare of a child stemming from incidents allegedly occurring in 1999 with the then 10-year-old son of his former girlfriend. Defendant was arraigned on June 14, 2000, at which time he was advised by County Court that any pretrial hearings would be held on October 13, 2000 and the trial would begin on October 16, 2000. In addition, County Court advised defendant, “If you are not present, I will assume you are giving up your right to be present and have the hearings and trial without you. Do you understand that?” Defendant replied in the affirmative.

Thereafter, Supreme Court (Connor, J.) granted defendant’s writ of habeas corpus and reduced his bail to $10,000. Defendant posted bail and was released. Subsequently, County [711]*711Court, following a hearing, revoked his bail upon finding that defendant’s violation of an order of protection demonstrated that he would not comply with court orders to appear when directed. However, Supreme Court granted another writ of habeas corpus and reinstated defendant’s bail.

On October 13, 2000, defendant failed to appear for his Huntley hearing. County Court recessed the hearing, revoked defendant’s bail, issued a warrant for his arrest, sent police to his place of employment and his home, and requested that defense counsel call anyone who could help locate defendant. The court then held a Parker hearing at which Kevin Skype, a City of Hudson Police Officer, testified. Skype related a conversation with defendant’s girlfriend who stated that defendant left for North Carolina at 11:30 a.m. the previous day. As a result, the court proceeded to conduct the Huntley hearing in defendant’s absence. When defendant also failed to appear for trial, he was tried in absentia and found guilty as charged. Thereafter, he was sentenced in absentia to consecutive determinate prison terms of seven years upon each of his three convictions for sexual abuse in the first degree and a concurrent one-year definite term upon his conviction of endangering the welfare of a minor. Defendant appeals.

Defendant argues that County Court failed to make reasonable efforts to locate him before conducting the proceedings in his absence.1 We find that County Court expended reasonable efforts to secure defendant’s attendance at trial. The trial in absentia proceeded only after it became apparent that “a further adjournment pending execution of the bench warrant would not likely result in locating [him] within a reasonable period of time” (People v Sumner, 254 AD2d 537, 538). In fact, defendant was not found until he surrendered to authorities in Texas subsequent to his sentencing.

Next, defendant contends that the jury’s verdict convicting him of three counts of sexual abuse in the first degree was not supported by legally sufficient evidence. When a claim of legal insufficiency is made, we examine the evidence “ ‘in a light most favorable to the People * * * to determine whether there is a valid line of reasoning and permissible inferences from which a rational jury could have found the elements of the crime proved beyond a reasonable doubt’ ” (People v Acosta, 80 NY2d 665, 672, quoting People v Steinberg, 79 NY2d 673, 681-682; see, People v Contes, 60 NY2d 620).

A person commits sexual abuse in the first degree when he [712]*712or she subjects another person under the age of 11 years to sexual contact (see, Penal Law § 130.65 [3]). Here, the victim testified that on three occasions in 1999, when he was 10 years old, defendant placed his hand into the victim’s underwear and touched his “privates.” The victim indicated that, during the first incident, defendant pulled his underwear down. During the others, defendant slipped his hand into the victim’s underpants tickling and touching his privates playing a game called “where’s George,” “George” being defendant’s name for the victim’s privates. Immediately following the first incident, defendant warned the victim not to tell anyone or he would be harmed. We find that the foregoing evidence presented a valid line of reasoning together with permissible inferences from which any rational jury could find defendant guilty beyond a reasonable doubt of all the essential elements of the crime of sexual abuse in the first degree (see, Penal Law § 130.65 [3]; People v Stickles, 267 AD2d 604, 605, lv dismissed 95 NY2d 839).

Next, we address defendant’s argument that the verdict was against the weight of the evidence. Initially, we note that although there were some inconsistencies between the testimonies of the victim and the other child witness, they were not such as would render either witness’s testimony unworthy of belief as a matter of law (see, People v Smith, 272 AD2d 713, 715-716, lv denied 95 NY2d 871). Furthermore, while it may be argued that a different verdict would not have been unreasonable based upon the evidence, upon “ ‘weighting] the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony’ ” (People v Bleakley, 69 NY2d 490, 495, quoting People ex rel. MacCracken v Miller, 291 NY 55, 62), we find that the jury gave the evidence the weight it should be accorded (see, People v Bleakley, supra at 495; People v Stokes, 290 AD2d 71, 73-74).

We turn to defendant’s contention that County Court erred in admitting the details of the victim’s complaint of the first incident through the testimony of another child witness in whom the victim confided, as a prompt outcry exception to the rule against admission of prior consistent statements (see, People v McDaniel, 81 NY2d 10, 16-18; People v Rice, 75 NY2d 929, 932). Since defendant failed to object to the admissibility of this testimony at trial, did not move to strike it or seek an appropriate limiting instruction (see, People v Pace, 145 AD2d 834, 836, lv denied 73 NY2d 894), we find the issue not preserved for appellate review (see, GPL 470.05; People v [713]*713Archer, 232 AD2d 820, 822, lv denied 89 NY2d 1087; People v Pace, supra at 836). Furthermore, we decline to exercise our interest of justice jurisdiction to take any corrective action (see, CPL 470.15 [6] [a]; 470.20 [1]).

Defendant also contends that County Court improperly considered its determination that defendant violated the Hudson City Court’s order of protection when it imposed sentence. A defendant is deprived of due process when he or she is sentenced “on the basis of * “materially untrue” assumptions or “misinformation” ’ ” (People v Naranjo, 89 NY2d 1047, 1049, quoting United States v Pugliese, 805 F2d 1117, 1123, quoting Townsend v Burke, 334 US 736, 741). As long as the sentencing court bases the sentence on reliable and accurate information, due process will be satisfied (see, People v Naranjo, supra at 1049; People v Outley, 80 NY2d 702, 712).

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Bluebook (online)
294 A.D.2d 710, 743 N.Y.S.2d 573, 2002 N.Y. App. Div. LEXIS 5070, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-shook-nyappdiv-2002.