Opinion
98 KA 19-00091
07-09-2021
The PEOPLE of the State of New York, Respondent, v. Steven C. FELICIANO, Defendant-Appellant.
PAUL B. WATKINS, FAIRPORT, FOR DEFENDANT-APPELLANT. JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (V. CHRISTOPHER EAGGLESTON OF COUNSEL), FOR RESPONDENT.
PAUL B. WATKINS, FAIRPORT, FOR DEFENDANT-APPELLANT.
JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (V. CHRISTOPHER EAGGLESTON OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, TROUTMAN, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by reversing those parts convicting defendant of course of sexual conduct against a child in the first degree and rape in the first degree and dismissing counts two and four of the indictment, and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of two counts of predatory sexual assault against a child ( Penal Law § 130.96 ) and one count each of course of sexual conduct against a child in the first degree ( § 130.75 [1] [b] ), rape in the first degree ( § 130.35 [4] ), criminal sexual act in the first degree (§ 130.50 [1]), and criminal sexual act in the second degree (§ 130.45 [1]). Defendant failed to preserve for our review his contention that County Court erred in admitting in evidence photographs depicting the victim at several different ages (see CPL 470.05 [2] ; People v. Mandes , 168 A.D.3d 764, 765, 91 N.Y.S.3d 194 [2d Dept. 2019], lv denied 33 N.Y.3d 950, 100 N.Y.S.3d 191, 123 N.E.3d 850 [2019] ). In any event, most of the photographs, which were neither inflammatory nor prejudicial, were relevant to illustrate the victim's age at the time the crimes occurred and to demonstrate her changing physical appearance during the time periods in question (see People v. Khan , 88 A.D.3d 1014, 1015, 931 N.Y.S.2d 393 [2d Dept. 2011], lv denied 18 N.Y.3d 884, 939 N.Y.S.2d 754, 963 N.E.2d 131 [2012] ) and, even assuming, arguendo, that the court erred in admitting certain photographs due to their lack of probative value, we conclude that any error is harmless (see People v. Marra , 96 A.D.3d 1623, 1626, 946 N.Y.S.2d 783 [4th Dept. 2012], affd 21 N.Y.3d 979, 971 N.Y.S.2d 491, 994 N.E.2d 387 [2013] ; People v. Murray , 140 A.D.2d 949, 950, 529 N.Y.S.2d 628 [4th Dept. 1988], lv denied 72 N.Y.2d 960, 534 N.Y.S.2d 673, 531 N.E.2d 305 [1988] ). Furthermore, defendant was not deprived of effective assistance of counsel by defense counsel's failure to object to those photographs (see People v. Lundy , 178 A.D.3d 1389, 1390, 116 N.Y.S.3d 831 [4th Dept. 2019], lv denied 35 N.Y.3d 994, 125 N.Y.S.3d 639, 149 N.E.3d 400 [2020] ; People v. Lowery , 158 A.D.3d 1179, 1180, 71 N.Y.S.3d 247 [4th Dept. 2018], lv denied 31 N.Y.3d 1119, 81 N.Y.S.3d 379, 106 N.E.3d 762 [2018] ).
Contrary to defendant's contentions, the court did not err in permitting the prosecution to elicit Molineux evidence that defendant had additional sexual contact with the victim both before and after the events charged in the indictment. Initially, we note that the record belies defendant's contention that the People failed to provide notice of their intent to introduce evidence regarding defendant's attacks on the victim after the events charged in the indictment. With respect to the merits, the victim's testimony concerning uncharged acts of sexual abuse was properly admitted " ‘to complete the narrative of the events charged in the indictment ..., and [to] provide[ ] necessary background information’ " ( People v. Workman , 56 A.D.3d 1155, 1156, 868 N.Y.S.2d 430 [4th Dept. 2008], lv denied 12 N.Y.3d 789, 879 N.Y.S.2d 66, 906 N.E.2d 1100 [2009] ; see People v. Griffin , 111 A.D.3d 1413, 1414-1415, 975 N.Y.S.2d 306 [4th Dept. 2013], lv denied 23 N.Y.3d 1037, 993 N.Y.S.2d 250, 17 N.E.3d 505 [2014] ). In addition, such evidence was relevant to the forcible compulsion element of the criminal sexual act counts and to explain the victim's delay in disclosing the charged crimes and the timing of her disclosure (see People v. Brown , 128 A.D.3d 1183, 1184-1186, 9 N.Y.S.3d 434 [3d Dept. 2015], lv denied 27 N.Y.3d 993, 38 N.Y.S.3d 103, 59 N.E.3d 1215 [2016] ; see generally People v. Leeson , 12 N.Y.3d 823, 826-827, 880 N.Y.S.2d 895, 908 N.E.2d 885 [2009] ). Moreover, the probative value of that evidence outweighed its potential for prejudice (see People v. Elmore , 175 A.D.3d 1003, 1004, 107 N.Y.S.3d 252 [4th Dept. 2019], lv denied 34 N.Y.3d 1158, 120 N.Y.S.3d 277, 142 N.E.3d 1179 [2020] ), and the court's limiting instructions minimized any prejudice to defendant (see Workman , 56 A.D.3d at 1157, 868 N.Y.S.2d 430 ; see also Griffin , 111 A.D.3d at 1415, 975 N.Y.S.2d 306 ). Although defendant further contends that the court was required to give a limiting instruction to the jury immediately after the victim testified about the subsequent bad acts, defendant failed to seek such an additional instruction and failed to object to the instructions that were given, and thus "that issue has not been preserved for our review" ( People v. Williams , 231 A.D.2d 868, 868, 648 N.Y.S.2d 62 [4th Dept. 1996], lv denied 89 N.Y.2d 868, 653 N.Y.S.2d 291, 675 N.E.2d 1244 [1996] ; see generally People v. Hymes , 34 N.Y.3d 1178, 1179, 122 N.Y.S.3d 587, 145 N.E.3d 224 [2020] ). In any event, in light of defendant's failure to request an additional instruction, to seek a mistrial, or to object to the instructions that were given, we conclude that the instructions that were given " ‘must be deemed to have corrected the [alleged] error to the defendant's satisfaction’ " ( People v. Lane , 106 A.D.3d 1478, 1480-1481, 966 N.Y.S.2d 307 [4th Dept. 2013], lv denied 21 N.Y.3d 1043, 972 N.Y.S.2d 540, 995 N.E.2d 856 [2013], quoting People v. Heide , 84 N.Y.2d 943, 944, 620 N.Y.S.2d 814, 644 N.E.2d 1370 [1994] ). Defendant also contends that the court erred in its handling of a jury note requesting a readback of the court's instructions concerning the criminal sexual act counts, i.e., counts five and six of the indictment. During the court's readback, the court eliminated certain parts of the statutory definition of oral sexual conduct that had been included in the original instruction. "The court has discretion to respond as it deems proper to an inquiry by a deliberating jury ..., provided that the supplemental instruction is a meaningful response to the jury's inquiry" ( People v. Williams , 277 A.D.2d 945, 945, 716 N.Y.S.2d 241 [4th Dept. 2000], lv denied 96 N.Y.2d 789, 725 N.Y.S.2d 654, 749 N.E.2d 223 [2001] ; see People v. Malloy , 55 N.Y.2d 296, 302, 449 N.Y.S.2d 168, 434 N.E.2d 237 [1982], cert denied 459 U.S. 847, 103 S.Ct. 104, 74 L.Ed.2d 93 [1982] ). In determining whether the court's response constituted an abuse of discretion, "[t]he factors to be evaluated are the form of the jury's question ..., the particular issue of which inquiry is made, the supplemental instruction actually given and the presence or absence of prejudice to the defendant" ( Malloy , 55 N.Y.2d at 302, 449 N.Y.S.2d 168, 434 N.E.2d 237 ; see People v. Taylor , 26 N.Y.3d 217, 224, 22 N.Y.S.3d 140, 43 N.E.3d 350 [2015] ). Here, the court merely eliminated certain parts of the statutory definition of oral sexual conduct that did not apply to the allegations against defendant (see Penal Law § 130.00 [2] [a] ). Consequently, we conclude that "the court's supplemental instruction, viewed together with the court's main charge, adequately conveyed the applicable principles of law to the jury and was a meaningful response to the jury's inquiry" ( People v. Smith , 21 A.D.3d 1277, 1278, 801 N.Y.S.2d 663 [4th Dept. 2005], lv denied 7 N.Y.3d 763, 819 N.Y.S.2d 889, 853 N.E.2d 260 [2006] ; see generally Malloy , 55 N.Y.2d at 301-302, 449 N.Y.S.2d 168, 434 N.E.2d 237 ).
As the People correctly concede, counts two and four of the indictment, charging defendant with course of sexual conduct against a child in the first degree ( Penal Law § 130.75 [1] [b] ) and rape in the first degree ( § 130.35 [4] ), respectively, must be dismissed inasmuch as they are inclusory concurrent counts of counts one and three, respectively, charging defendant with predatory sexual assault against a child ( § 130.96 ) (see People v. Scott , 61 A.D.3d 1348, 1349, 877 N.Y.S.2d 536 [4th Dept. 2009], lv denied 12 N.Y.3d 920, 884 N.Y.S.2d 701, 912 N.E.2d 1082 [2009], reconsideration denied 13 N.Y.3d 799, 887 N.Y.S.2d 549, 916 N.E.2d 444 [2009] ; see also People v. Lancaster , 143 A.D.3d 1046, 1053, 41 N.Y.S.3d 129 [3d Dept. 2016], lv denied 28 N.Y.3d 1147, 52 N.Y.S.3d 298, 74 N.E.3d 683 [2017], reconsideration denied 29 N.Y.3d 999, 57 N.Y.S.3d 720, 80 N.E.3d 413 [2017] ; People v. Slishevsky , 97 A.D.3d 1148, 1151, 948 N.Y.S.2d 497 [4th Dept. 2012], lv denied 20 N.Y.3d 1015, 960 N.Y.S.2d 358, 984 N.E.2d 333 [2013] ). We therefore modify the judgment accordingly.
Defendant further contends that the conviction is not supported by legally sufficient evidence that the crimes occurred during the time periods specified in the indictment. Although defendant raised that challenge with respect to some of the counts, he failed to raise it with respect to the criminal sexual act counts and, as a result, failed to preserve his contention for our review with respect to those two counts (see People v. Owens , 149 A.D.3d 1561, 1562, 52 N.Y.S.3d 790 [4th Dept. 2017], lv denied 30 N.Y.3d 982, 67 N.Y.S.3d 584, 89 N.E.3d 1264 [2017] ; see generally People v. Gray , 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] ). In any event, we conclude that the evidence is legally sufficient to support defendant's conviction with respect to each of the remaining counts, i.e., counts one and three, charging predatory sexual assault against a child, count five, charging criminal sexual act in the first degree, and count six, charging criminal sexual act in the second degree (see Owens , 149 A.D.3d at 1562, 52 N.Y.S.3d 790 ; People v. Lawrence , 81 A.D.3d 1326, 1327, 916 N.Y.S.2d 393 [4th Dept. 2011], lv denied 17 N.Y.3d 797, 929 N.Y.S.2d 105, 952 N.E.2d 1100 [2011] ; see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). Additionally, viewing the evidence in light of the elements of those crimes as charged to the jury (see People v. Danielson , 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we reject defendant's contention that the verdict is against the weight of the evidence with respect thereto (see generally Bleakley , 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).
Finally, defendant contends that the court relied on improper evidence at sentencing. We reject that contention. With respect to defendant's specific contention that the court erred in relying on evidence that there was another victim, we note that defendant had previously pleaded guilty to a sexual offense related to that victim, and it is well settled that, "[u]nder its discretionary sentencing power, a court may properly consider evidence of prior crimes" ( People v. Naranjo , 89 N.Y.2d 1047, 1049, 659 N.Y.S.2d 826, 681 N.E.2d 1272 [1997] ). With respect to defendant's specific contention that the court relied on biased and inaccurate information in the presentence report, the record establishes that the court redacted the information that it considered unreliable from the report and did not rely on any materially untrue assumptions or misinformation (cf. People v. Bratcher , 291 A.D.2d 878, 879, 737 N.Y.S.2d 451 [4th Dept. 2002], lv denied 98 N.Y.2d 673, 746 N.Y.S.2d 462, 774 N.E.2d 227 [2002] ; see generally People v. Outley , 80 N.Y.2d 702, 712, 594 N.Y.S.2d 683, 610 N.E.2d 356 [1993] ).