Opinion
NO. 2015-2408 N CR
10-26-2017
The People of the State of New York, Respondent, v. Richard Gerzof, Appellant.
Paula Schwartz Frome, Esq., for appellant. Nassau County District Attorney (John B. Latella, Laurie K. Gibbons of counsel), for respondent.
PRESENT: :
Paula Schwartz Frome, Esq., for appellant.
Nassau County District Attorney (John B. Latella, Laurie K. Gibbons of counsel), for respondent.
Appeal from a judgment of the District Court of Nassau County, First District (Joy M. Watson, J.), rendered October 13, 2015. The judgment convicted defendant, after a nonjury trial, of forcible touching.
ORDERED that the judgment of conviction is affirmed.
Defendant was charged with forcible touching (Penal Law § 130.52). At a nonjury trial, the complainant testified that she had been employed by a restaurant as a part-time bartender for approximately 17 years. Defendant was a part owner of the restaurant, and the complainant's brother-in-law was the restaurant's manager. At approximately 7:00 p.m. on Thursday, September 19, 2013, defendant grabbed the complainant's buttocks and pushed his hips against her in the back of the restaurant, at a soda and iced tea machine. Defendant's hands were on each side of her buttocks and hips. Moderate pressure was used, and there was some pushing. She had no further interaction with defendant that night and finished her shift. The complainant further testified that defendant had previously made sexual comments to her "throughout the years," as well as asking her to date him or to get together. On September 6, 2013, defendant made a comment to the complainant regarding her private parts. On Friday, September 13, 2013, the complainant asked defendant for an extra shift. Defendant allegedly responded that he would agree, if she "put out."
The complainant worked at the restaurant on Friday, September 20, 2013. On September 21, 2013, the complainant told her boyfriend, a New York City police detective, what had happened on September 19th. On September 22, 2013, she reported the incident to the police. She did not report the incident earlier because she "wanted to speak about it with people who were close to" her. The brother of the complainant's boyfriend was a Nassau County police officer assigned to the Second Precinct, where the complainant reported the incident. The complainant did not work at the restaurant after September 20, 2013.
During cross-examination, when asked if she planned to sue the restaurant, the complainant replied, "[i]ncorrect," and explained that, "I feel I should be compensated for anything that I lost. But I'm not quite sure I'm going to go down that road because I would really like to move on with my life." However, she agreed that a lawyer, whom she did not hire but "went to . . . for advice" in late September 2013, had written a letter to the restaurant on her behalf. The complainant testified that it was incorrect that she was "looking to make money off" the restaurant.
A Nassau County police detective testified that he had interviewed defendant, who had stated that he had been at the restaurant on the night in question, that he had walked past the complainant to get by a small area near the soda dispenser, and that he had to grab her to move her out of the way.
The prosecutor, during summation, told the court, in part, that:
"You have heard multiple arguments from the defense that the reason you should not trust this case is because this is about setting up a civil suit, that this is about [the complainant] setting up an ability for her to get paid. But, your Honor, [she] went to an attorney who wrote that letter and [she] met with her one time and she told you on that stand that she didn't retain that lawyer."
On September 23, 2014, the District Court found defendant guilty as charged.
On February 25, 2015, defendant moved to set aside the verdict pursuant to CPL 330.30, on the ground, among others, that new evidence had been discovered to the effect that the complainant had committed perjury at the trial when she had denied that she had intended to sue defendant and the restaurant, or that she had hired an attorney for that purpose. Counsel claimed that, two weeks before the complainant's testimony, she "had not only hired the very lawyer she unequivocally denied hiring," but she "had also filed an action against" the restaurant and defendant. Annexed as an exhibit to defendant's motion papers was a summons and complaint, dated September 5, 2014, in which the complainant is the plaintiff and the restaurant and Richard Gerzof are the defendants. The plaintiff's attorney was the same law firm that the complainant had sought advice from. According to defendant, the summons and complaint were not served until January 2015.
The People opposed the motion on the ground, among others, that it did not satisfy the six factors for newly discovered evidence established in People v Salemi (309 NY 208, 215-216 [1955]). First, because the complainant had testified during cross-examination at trial that she felt that she "should be compensated for anything that [she] lost," but was "not quite sure" she was going to sue defendant and the restaurant, even had she been confronted with the summons and complaint, it is not probable that this evidence would have changed the outcome of the trial. Moreover, she may have not understood the distinction between the lawyer and the firm. Furthermore, the court had the opportunity to consider the possibility that the complainant had retained an attorney. In addition, the fact that an action had been commenced was cumulative and not "new" for purposes of CPL 330.30. Even if the existence of the summons and complaint constituted evidence that the complainant had lied during her trial testimony, it merely impeached or contradicted the prior evidence and did not constitute new evidence.
In a decision dated June 18, 2015, the District Court denied the motion with respect to the claim of newly discovered evidence. The court determined that defendant had offered "written proof that the complaining witness contemplated a civil lawsuit, prior to the trial herein. However, review of the papers submitted reveals that the issue of a civil lawsuit was raised and considered at trial."
On October 13, 2015, the court sentenced defendant to a term of six years of probation, with several special offender conditions, including therapy and sensitivity training. It imposed a $1,000 fine, a $175 mandatory surcharge, a $25 crime victim assistance fee, and a $50 DNA fee. The court issued a five-year stay-away order of protection in favor of the complainant against defendant.
On appeal, defendant argues that the verdict of guilt was against the weight of the evidence, based on the lack of credibility of the complainant; that the motion to set aside the verdict should have been granted, based on the newly discovered evidence that a lawsuit had been filed; and that the sentence imposed was excessive.
In conducting an independent review of the weight of the evidence (see People v Danielson, 9 NY3d 342, 348 [2007]), this court accords great deference to the factfinder's opportunity to view the witnesses, hear their testimony, and observe their demeanor (see People v Lane, 7 NY3d 888, 890 [2006]; People v Mateo, 2 NY3d 383 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]; People v Zephyrin, 52 AD3d 543 [2008]).
The complainant's testimony regarding the incident and defendant's conduct in the weeks prior thereto was very detailed. In People v Higgins (45 AD3d 975, 977 [2007]), the court affirmed the defendant's conviction of criminal sexual act in the first degree, forcible touching, unlawful imprisonment in the second degree and menacing in the third degree, "given the victim's detailed testimony regarding the incident and her explanations regarding her behavior afterward." The court determined that the verdict of guilt was not against the weight of the evidence even though the victim did not immediately report the incident to the police. Upon a review of the record, we are of the opinion that the verdict of guilt herein was likewise not against the weight of the evidence.
To be successful upon a motion to set aside a guilty verdict pursuant to CPL 330.30 (3), a defendant has the burden of proving "by a preponderance of the evidence every fact essential to support the motion" (CPL 330.40 [2] [g]; see People v Marino, 99 AD3d 726, 730 [2012]; People v Tankleff, 49 AD3d 160, 179-180 [2007]). For such a motion to be granted, the defendant must establish six elements: It must be such as will probably change the result; it must have been discovered since the trial; it could not have been discovered before the trial by the exercise of due diligence; it must be material to the issue; it must not be cumulative to the former issue; and it must not be merely impeaching or contradicting the former evidence (see People v Salemi, 309 NY at 216). "The power to vacate a judgment of conviction on the ground of newly discovered evidence rests within the discretion" of the trial court, which "must make its final decision based upon the likely cumulative effect of the new evidence had it been presented at trial" (People v Singh, 111 AD3d 767, 768 [2013]). In this case, defendant did not meet his burden.
The complainant falsely testified at the trial that she had not retained an attorney and that she was not planning to commence an action, when in fact, she had filed an action just weeks before her testimony. The summons and complaint apparently were not served until January 2015, following the completion of the trial. Courts have granted new trial motions where the newly discovered evidence "called into question the eyewitnesses' motivation and veracity" (People v Singh, 111 AD3d at 769; see People v Malik, 81 AD3d 981 [2011]). "[P]roof aimed at establishing a motive to fabricate is never collateral and may not be excluded on that ground" (People v Ocampo, 28 AD3d 684, 685 [2006]; see People v Ramos, 166 Misc 2d 515, 520-521 [Sup Ct, Kings County 1995], affd 232 AD2d 583 [1996]; People v Marzed, 161 Misc 2d 309, 317 [Crim Ct, NY County 1993]). Here, however, the purported new evidence was merely impeaching and probably would not have changed the result, as it did not address "directly the issue of defendant's guilt or innocence" (People v Bryant, 117 AD3d 1586, 1587 [2014]). We note that, at the trial, the complainant essentially testified that she might commence an action at a later date. Notwithstanding that testimony, the court determined that her testimony was credible. Consequently, the motion to set aside the verdict pursuant to CPL 330.30 (3) was correctly denied.
Penal Law § 65.00 (3) (b) (ii) provides that the period of probation for a "class A misdemeanor sexual assault shall be six years." A sexual assault includes an offense defined in Penal Law article 130, such as that charged herein (see Donnino, Practice Commentaries, McKinney's Cons Laws of NY, Book 39, Penal Law § 65.00). In this case, despite the fact that defendant was 68 years old when this incident took place, and had no prior criminal history, we find no basis for modification of the sentence (see People v Boone, 304 AD2d 976, 979 [2003]; People v Suitte, 90 AD2d 80 [1982]).
Accordingly, the judgment of conviction is affirmed.
GARGUILO, J.P., TOLBERT and RUDERMAN, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: October 26, 2017