Opinion
February 10, 1971
Appeal from a judgment of the County Court of Schoharie County, rendered June 8, 1970, upon a verdict convicting the defendant of the crime of incest. Defendant was indicted by the Grand Jury of Schoharie County on 62 counts of incest and one count of assault. The assault count was subsequently dismissed as being within the exclusive jurisdiction of the Family Court (Family Ct. Act, § 812). Counts 4 through 11 were dismissed for lack of proof of any incestuous acts prior to the complainant's 13th birthday (June 3, 1965). Defendant was convicted of the remaining 54 counts of incest, after a jury trial. In this criminal case the evidence substantiates the jury's verdict of guilty beyond a reasonable doubt. It should be noted, however, that the record on appeal shows that both counsel delved into collateral, redundant and irrelevant issues. Various witnesses testified as to admissions, statements and other facts and details without objection. There were no exceptions to the charge and various requests to charge were in substance granted. Upon review of the record in its entirety it does not appear that the constitutional or statutory rights of the defendant were impinged upon in these proceedings. There was proof as to the time and place of the alleged acts in the first two counts of the indictment. The various other counts were premised on testimony that over a period between June, 1965 and September, 1969, each month thereof, there was at least one act of incest performed, such testimony being from the complainant, the admissions of the defendant to the police officers and conflicting versions given by the defendant himself and which the jury apparently believed. It was an unusual manner of procedure and proof, but under the charge of the court that each count represented an act of incest for each month between the dates mentioned herein and that each such count must be proven to the satisfaction of the jury beyond a reasonable doubt, there appears to be no legal reason for this court's interference with the verdict. That the jury knew and understood its function is best evidenced when it returned and posed to the court the question "Must we bring in a unanimous verdict in each of the counts" and there were no objections to the instructions thereafter given by the court. The court sentenced the defendant to four years on each of the first two counts, to run consecutively, and a similar sentence on each of the other counts, all to run concurrently, so that the maximum sentence imposed was eight years. There was a "Huntley hearing" at which the police officers testified with reference to the admissions and the defendant testified as to his version thereof and the court found that the "statements that have been testified to made by the Defendant to the police officers are voluntary and admissible". The other alleged errors, inter alia, that the Family Court had exclusive jurisdiction; the Grand Jury minutes; a fair trial; and failure to plead to the indictment are all without merit. Judgment affirmed. Herlihy, P.J., Reynolds, Greenblott, Cooke and Sweeney, JJ., concur.