People v. Alger

• Decision Date: 02 June 2022
• Docket Number: 111257
• Parties: The People of the State of New York, Respondent, v. Richard Alger, Appellant.
• Court: New York Supreme Court — Appellate Division

2022 NY Slip Op 03545

The People of the State of New York, Respondent, v. Richard Alger, Appellant.

No. 111257

Supreme Court of New York, Third Department

June 2, 2022

Calendar Date: April 19, 2022

Bruce Evans Knoll, Albany, for appellant.

J Anthony Jordan, District Attorney, Fort Edward (Taylor Fitzsimmons of counsel), for respondent.

Before: Lynch, J.P., Clark, Aarons, Colangelo and McShan, JJ.

Clark J.

Appeal from a judgment of the County Court of Washington County (McKeighan, J.), rendered January 11, 2019, upon a verdict convicting defendant of the crimes of rape in the third degree (two counts), sexual abuse in the first degree endangering the welfare of a child (two counts), predatory sexual assault against a child, incest in the first degree and course of sexual conduct against a child in the first degree.

In July 2018, based upon his alleged sexual contact with an 11-year-old girl (hereinafter the younger victim) and a 15-year-old girl (hereinafter the older victim), defendant was charged with two counts of rape in the third degree (counts 1 and 2), sexual abuse in the first degree (count 3), two counts of endangering the welfare of a child (counts 4 and 9), promoting a sexual performance by a child (count 5), possession of a sexual performance by a child (count 6), predatory sexual assault against a child (count 7), incest in the first degree (count 8) and course of sexual conduct against a child in the first degree (count 10). Prior to trial, County Court dismissed counts 5 and 6 of the indictment on the ground that the evidence presented to the grand jury was legally insufficient. Defendant was convicted of the remaining eight counts of the indictment following a jury trial. Defendant was thereafter sentenced to various concurrent and consecutive terms of incarceration, resulting in an aggregate prison term of 33 years to life. Defendant appeals.

Defendant argues that the verdict is unsupported by legally sufficient evidence and is also against the weight of the evidence. Defendant's legal sufficiency argument is preserved only to the extent that he argues that there is insufficient evidence that he had sexual intercourse with the victims, as required for his convictions under counts 1, 2, 7, 8 and 10 of the indictment (see People v Taylor, 196 A.D.3d 851, 851-852 [2021], lvs denied 37 N.Y.3d 1025, 1030 [2021]; compare People v Ackerman, 173 A.D.3d 1346, 1348 [2019], lv denied 34 N.Y.3d 949 [2019]). Nevertheless, in conducting our weight of the evidence review, we necessarily consider whether the People satisfied their burden of proof for each element of the crimes for which defendant was convicted (see People v Garrand, 189 A.D.3d 1763, 1763 [2020], lv denied 36 N.Y.3d 1120 [2021]; People v Shackelton, 177 A.D.3d 1163, 1165 [2019], lv denied 34 N.Y.3d 1162 [2020]). In a weight of the evidence analysis, we first determine whether, based upon all of the credible evidence, a different finding would have been unreasonable and, if not, we then "'weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony'" to determine if the verdict is supported by the weight of the evidence (People v Bleakley, 69 N.Y.2d 490, 495 [1987], quoting People ex rel. MacCracken v Miller, 291 NY 55, 62 [1943]; see People v Youngs, 175 A.D.3d 1604, 1606 [2019]).

As charged in counts 1 and 2 of the indictment, which relate to the older victim, a conviction for rape in the third degree requires proof that the defendant, being 21 years of age or older, engaged in sexual intercourse with someone younger than 17 years old (see Penal Law § 130.25 [2]). As charged in count 3 of the indictment, which relates to the younger victim, a person is guilty of sexual abuse in the first degree when he or she is 21 years of age or older and subjects someone less than 13 years of age to sexual contact (see Penal Law §§ 130.00 [3]; 130.65 [4]). Under counts 4 and 9 of the indictment, relating to the younger victim, "[a] person is guilty of endangering the welfare of a child when... [h]e or she knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a child less than [17] years old" (Penal Law § 260.10 [1]). As for count 7, regarding the younger victim, a defendant is guilty of predatory sexual assault against a child when the victim is less than 13 years old and the defendant, being 18 years old or more, commits the crime of rape in the first degree or course of sexual conduct against a child in the first degree (see Penal Law § 130.96). Under count 8 of the indictment, regarding the younger victim, a person is guilty of incest in the first degree when, as relevant here, he or she commits the crime of rape in the first degree, as defined in Penal Law § 130.35 (3) or (4), "against a person whom he or she knows to be related to him or her, whether through marriage or not, as an ancestor, descendant, brother or sister of either the whole or half blood, uncle, aunt, nephew or niece" (Penal Law § 255.27). As relevant to counts 7 and 8 of the indictment, a person commits rape in the first degree when he or she is 18 years or older and engages in sexual intercourse with someone less than 13 years old (see Penal Law § 130.35 [4]). Lastly, under count 10 of the indictment, relating to the younger victim, "[a] person is guilty of course of sexual conduct against a child in the first degree when, over a period of time not less than three months in duration[, ]... he or she, being [18] years old or more, engages in two or more acts of sexual conduct, which include at least one act of sexual intercourse[, ]... with a child less than [13] years old" (Penal Law § 130.75 [1] [b]; see also Penal Law § 130.00 [3], [10]).

At trial, both victims testified that defendant took them boating on the Hudson River in July 2017. The older victim asserted that, as she and the younger victim were skinny-dipping, she observed defendant masturbating on the boat. The victims consistently testified that, after swimming, they played truth or dare with defendant and that defendant later put his penis inside the older victim's vagina and digitally penetrated both victims' vaginas. According to the older victim, defendant ejaculated inside and outside of her vagina. The older victim thereafter reported defendant's conduct to law enforcement and underwent a sexual assault examination at the hospital. The sexual assault nurse examiner who conducted the examination testified as to the older victim's statements during the examination, which included her assertions that defendant penetrated her vagina with his penis and fingers and that defendant had ejaculated. Testimony from two forensic scientists established that cuttings from the jean shorts and underwear worn by the older victim on the day of the boating incident were positive for seminal fluid and that DNA extracted from those cuttings matched defendant.

The older and younger victims testified that they each had separate, additional encounters with defendant. The older victim testified that, sometime after mid-May 2017, but before the July 2017 boating incident, defendant had vaginal sexual intercourse with her in a camper in defendant's backyard. The younger victim testified that, on an evening in November 2017, she asked defendant for a particular dinner food and that defendant responded that it would "cost" her. She stated that, later that night, defendant "came over and took the blankets off me, and my clothes, and then... put his penis inside of me." The People presented evidence of the police investigation that established that defendant had a camper and a boat at his home.

Contrary to defendant's contention, we find that the trial evidence amply supported the jury's verdict. The evidence established that the older victim was younger than 17 years old on the two occasions when defendant had vaginal sexual intercourse with her and that the younger victim was younger than 13 years of age when defendant had vaginal sexual intercourse with her and digitally penetrated her vagina. Testimony from both victims established the younger victim's relation to defendant and the older victim's testimony was sufficient to satisfy the statutory corroboration requirement set forth in Penal Law § 255.30 (2) (see People v Vincent, 34 A.D.2d 705, 707 [1970], affd 27 N.Y.2d 964 [1970]; cf. Matter of Nevada FF., 214 A.D.2d 814, 815 [1995], lv denied 86 N.Y.2d 703 [1995]). Lastly, testimony from an investigator, together with the victims' testimony as to how defendant was related to the younger victim, established that defendant was well over the age of 21 at the time of his sexual encounters with the victims (compare People v Castro, 286 A.D.2d 989, 990 [2001], lv denied 97 N.Y.2d 680 [2001]). Accordingly, we are satisfied that the verdict is supported by legally sufficient evidence and that, although a different verdict would not have been unreasonable, it is not against the weight of the evidence (see Penal Law §§ 130.25 [2]; 130.65 [4]; 130.75 [1] [b]; 130.96; 255.27, 260.10 [1]; People v Jabaut, 111 A.D.3d 1140, 1143 [2013], lv denied 22 N.Y.3d 1139 [2014]).

Defendant also argues that County Court erred in denying his for-cause challenges to prospective jurors Nos. 17, 75 and 109. Pursuant to CPL 270.20 (1) (b), a party may challenge a prospective juror for cause if the juror "has a state of mind that is likely to preclude him [or her] from rendering an impartial verdict based upon the evidence adduced at the trial." "If a prospective juror makes statements that raise a serious doubt regarding his or her ability to be impartial, the trial court should conduct a follow-up inquiry regarding the preexisting opinion and must...