Summary
rejecting a defendant's arguments that though a victim stated that sexual intercourse took place, without a specific statement that penetration occurred and a lack of physical evidence, a conviction should be overturned
Summary of this case from Bonilla v. GriffinOpinion
2012-07-19
The PEOPLE of the State of New York, Respondent, v. Michael J. WYRE, Appellant.
Mitch Kessler, Cohoes, for appellant. Joseph G. Fazzary, District Attorney, Watkins Glen, for respondent.
Mitch Kessler, Cohoes, for appellant. Joseph G. Fazzary, District Attorney, Watkins Glen, for respondent.
Before: ROSE, J.P., SPAIN, MALONE JR., KAVANAGH and EGAN JR., JJ.
KAVANAGH, J.
Appeal from a judgment of the County Court of Schuyler County (Argetsinger, J.), rendered September 30, 2010, upon a verdict convicting defendant of the crimes of rape in the first degree (two counts), criminal sexual act in the first degree, sexual abuse in the first degree, course of sexual conduct against a child in the first degree, predatory sexual assault (two counts) and predatory sexual assault against a child (two counts).
On a weekend in October 2009, victim A was dropped off by her mother at defendant's residence and spent Friday evening at his home. The following morning she left, and returned later that evening with victim B; both girls—who were 10 years old at the time—spent the night at defendant's residence. Six weeks later, after victim A was questioned by a physician as to whether she had been sexually abused, both victims reported that they had been sexually assaulted by defendant while at his residence. As a result, defendant was arrested and later charged by indictment with predatory sexual assault (two counts), predatory sexual assault against a child (two counts), rape in the first degree (two counts), criminal sexual act in the first degree, sexual abuse in the first degree and course of sexual conduct against a child. After a jury trial, defendant was convicted as charged and sentenced, as a second child sexual assault felony offender, to various prison terms, the maximum of which was 25 years to life, with 20 years of postrelease supervision. He now appeals.
Victim A alleged that defendant compelled her to engage in oral sex, as well as sexual intercourse. Victim B testified that she was compelled to have sexual as well as anal intercourse with defendant.
Defendant first argues that the evidence at trial was legally insufficient to establish that he actually had sexual intercourse with victim B, and therefore his convictions for rape in the first degree (count 2), predatory sexual assault (count 6) and predatory sexual assault against a child (count 9) must be reversed and those charges dismissed ( seePenal Law § 130.35[3]; § 130.95[2]; § 130.96). “ ‘Sexual intercourse’ has its ordinary meaning and occurs upon any penetration, however slight” (Penal Law § 130.00[1]; see People v. Newkirk, 75 A.D.3d 853, 858, 906 N.Y.S.2d 133 [2010],lv. denied16 N.Y.3d 834, 921 N.Y.S.2d 198, 946 N.E.2d 186 [2011];People v. Sanchez, 69 A.D.3d 434, 434, 891 N.Y.S.2d 277 [2010],lv. denied14 N.Y.3d 844, 901 N.Y.S.2d 150, 927 N.E.2d 571 [2010];People v. Brown, 67 A.D.3d 1197, 1198, 888 N.Y.S.2d 680 [2009];People v. Gibson, 2 A.D.3d 969, 972 n., 768 N.Y.S.2d 511 [2003],lv. denied1 N.Y.3d 627, 777 N.Y.S.2d 26, 808 N.E.2d 1285 [2004];Matter of Zachary K., 299 A.D.2d 755, 756, 751 N.Y.S.2d 69 [2002] ). Defendant contends that, while victim B testified that he had sexual intercourse with her, she never stated that penetration in fact occurred, and no physical evidence was presented confirming that sexual intercourse, as that term is legally defined, had taken place. We disagree. Viewing this victim's testimony “in the light most favorable to the prosecution,” we find that a juror could rationally conclude that penetration did in fact occur and sexual intercourse did indeed take place ( People v. Carroll, 95 N.Y.2d 375, 382, 718 N.Y.S.2d 10, 740 N.E.2d 1084 [2000] [internal quotation marks and citations omitted]; see People v. Verrilli, 69 A.D.3d 963, 963, 895 N.Y.S.2d 439 [2010],lv. denied14 N.Y.3d 894, 903 N.Y.S.2d 782, 929 N.E.2d 1017 [2010] ).
Specifically, victim B testified that she woke up and “felt someone like putting his penis in my vagina” and while she stated that he did not put it inside “the hole,” she stated that “[i]t was just touching [the hole].” Moreover, on cross-examination, when defendant's counsel asked her whether the penis had gone inside, victim B said that it did, that it “went inside and touched the hole.”
Defendant also argues that his conviction of course of sexual conduct against a child in the first degree (count 5) was against the weight of the evidence. A person is guilty of this crime “when, over a period of time not less than three months ... he or she engages in two or more acts of sexual conduct, which includes at least one act of sexual intercourse, oral sexual conduct, anal sexual conduct or aggravated sexual contact, with a child less than [11] years old” (Penal Law § 130.75[1][a] ). Victim A testified that defendant engaged her in oral sexual conduct and sexual intercourse on multiple occasions during the weekend in October 2009, and on four other occasions when she was about four years old—or some six years prior to the October 2009 incident at defendant's residence. “According due deference to the jury's credibility determinations and viewing the evidence in a neutral light,” we conclude that the jury's verdict as to this charge was supported by the weight of the credible evidence introduced at trial ( People v. Muniz, 93 A.D.3d 871, 875, 939 N.Y.S.2d 181 [2012];see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987];People v. Schroo, 87 A.D.3d 1287, 1288, 930 N.Y.S.2d 158 [2011];People v. Nowinski, 36 A.D.3d 1082, 1083, 827 N.Y.S.2d 356 [2007],lv. denied8 N.Y.3d 989, 838 N.Y.S.2d 492, 869 N.E.2d 668 [2007] ).
Defendant also claims that he was denied the effective assistance of counsel. At the outset, we note that the record demonstrates that defendant's counsel at trial vigorously cross-examined the People's witnesses, including both victims, made appropriate and often successful objections to evidence sought to be admitted by the People, and established that no DNA or physical evidence existed that would serve to corroborate the victims' assertions that they were sexually abused by defendant ( see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981]; People v. Weatherspoon, 86 A.D.3d 792, 794, 927 N.Y.S.2d 217 [2011],lv. denied17 N.Y.3d 905, 933 N.Y.S.2d 660, 957 N.E.2d 1164 [2011];People v. King, 79 A.D.3d 1277, 1280, 912 N.Y.S.2d 329 [2010],lv. denied16 N.Y.3d 860, 923 N.Y.S.2d 422, 947 N.E.2d 1201 [2011] ). However, defendant claims that counsel made an egregious error that deprived him of effective representation when she provided the People with videotape recordings that defendant had made at his residence at the time that the victims claimed he sexually abused them. It is important to note that these recordings were delivered to the People by his counsel at defendant's insistence because he believed that they exonerated him and were not inculpatory. In fact, when viewed without the victims' testimony, the recordings are fairly benign and do not graphically depict any untoward conduct by defendant with the victims while they were at his residence. Only after each victim provided a narrative that supplemented what was visible on the recordings did it become clear that brief segments contained evidencethat was actually adverse to defendant's interest. As such, counsel, in complying with her client's directives, may have concluded that the recordings were, on balance, exculpatory and had a strategic reason for disclosing them to the People prior to the commencement of trial ( see People v. Blackman, 90 A.D.3d 1304, 1311, 935 N.Y.S.2d 181 [2011];People v. Arnold, 85 A.D.3d 1330, 1332, 924 N.Y.S.2d 679 [2011];see generally People v. Cherry, 46 A.D.3d 1234, 1238, 850 N.Y.S.2d 645 [2007],lv. denied10 N.Y.3d 839, 859 N.Y.S.2d 398, 889 N.E.2d 85 [2008] ). In addition, counsel made a timely objection that was overruled when the People sought to introduce these segments of the recordings at trial.
Out of 24 hours of videotapes, less than 15 minutes was played for the jury and, of these 15 minutes, less than one minute could be considered incriminating. In one segment where victim A was partially visible, she testified to performing oral sex on defendant and, at another point, she can be heard asking him, “I can just suck it, right?” Victim B testified that she had been sexually assaulted by defendant when she was heard on the recording stating that she “just wanted to go home.”
Defendant also claims that counsel inartfully cross-examined certain prosecution witnesses with the result that inculpatory evidence otherwise inadmissible was received into evidence at trial against him. Specifically, he challenges counsel's decision to elicit, on cross-examination of victim A's physician, the fact that the child had been examined during a medical appointment after the alleged sexual assaults took place for a preexisting condition involving genital warts. However, it appears that counsel pursued this line of questioning to establish that the victim had this appointment with the doctor to address a preexisting medical condition and not to report that she had been sexually assaulted by defendant. Also, defendant challenges the wisdom of counsel's cross-examination of an expert witness for the People who confirmed that children had been reported to have testified falsely about sexual assaults, but that such instances were rare. Again, a strategic objective consistent with defendant's interest may well have been served by having this witness acknowledge that reports of sexual assaults made by children have been found to be false, suggesting that such a circumstance was not unprecedented ( see People v. Blackman, 90 A.D.3d at 1311, 935 N.Y.S.2d 181;People v. Arnold, 85 A.D.3d at 1332, 924 N.Y.S.2d 679).
Finally, we do not find that County Court erred in barring cross-examination of victim A regarding sexual contact that she may have had with individuals other then defendant. Victim A testified, in support of the charge of course of sexual conduct against a child in the first degree, that, prior to October 2009, she had been sexually assaulted by defendant in the presence of defendant's friend “Bill.” On cross-examination, defendant sought to question her about any sexual contact that she may have had with “Bill.” County Court found that this proffered testimony served no relevant or legitimate purpose and ruled that it was barred by the Rape Shield Law. In that regard, the record establishes that this line of inquiry was not being pursued by defendant to establish that the victim had a history of filing false complaints regarding allegations of sexual assault or that defendant sought to raise any question regarding his identity as the perpetrator of the crimes charged in the indictment ( see People v. Segarra, 46 A.D.3d 363, 364, 847 N.Y.S.2d 564 [2007],lv. denied10 N.Y.3d 816, 857 N.Y.S.2d 50, 886 N.E.2d 815 [2008] ). The Rape Shield Law was designed to curtail such an inquiry, especially where it was not relevant in determining whether the crimes charged in the indictment had been committed, or whether defendant had perpetrated them.
ORDERED that the judgment is affirmed.