People v. Cummings

• Decision Date: 25 November 2020
• Docket Number: 110665
• Citation: 136 N.Y.S.3d 524,188 A.D.3d 1449
• Parties: The PEOPLE of the State of New York, Respondent, v. Glenn E. CUMMINGS, Appellant.
• Court: New York Supreme Court — Appellate Division

188 A.D.3d 1449

136 N.Y.S.3d 524

The PEOPLE of the State of New York, Respondent,

v.Glenn E. CUMMINGS, Appellant.

110665

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: October 16, 2020

Decided and Entered: November 25, 2020

John R. Trice, Elmira, for appellant.

Kirk O. Martin, District Attorney, Owego (Cheryl Mancini of counsel), for respondent.

Before: Lynch, J.P., Mulvey, Devine, Pritzker and Colangelo, JJ.

MEMORANDUM AND ORDER

Lynch, J.P.

In February 2017, the 14–year–old daughter of defendant's girlfriend (hereinafter the victim) reported to a friend that defendant had sexually abused her. Authorities commenced an investigation and defendant met with police for an interview. During the interview, defendant signed a Miranda waiver and initially denied any sexual contact with the victim but eventually admitted to engaging in inappropriate sexual contact with her. Defendant was thereafter charged by indictment with criminal sexual act in the second degree, rape in the second degree, sexual abuse in the third degree and endangering the welfare of a child. Prior to trial, defendant filed an omnibus motion seeking, among other things, to suppress the statements that he gave to police. Following a suppression hearing – during which defendant argued that the Miranda waiver was invalid and he was under the influence of drugs and alcohol at the time of his incriminating statements – County Court denied defendant's motion to suppress the statements, finding that defendant knowingly, intelligently and voluntarily waived his Miranda rights and that he "did not exhibit any signs of being under the influence of drugs or alcohol" in the videotaped recording of the interview.

A jury trial ensued, after which defendant was convicted as charged. He was sentenced to consecutive prison terms of five years with 10 years of postrelease supervision upon each conviction of criminal sexual act in the second degree and rape in the second degree and to time served on the remaining counts, resulting in an aggregate prison term of 10 years. Defendant appeals.

Defendant contends that the verdict is against the weight of the evidence, primarily challenging the credibility of the victim and asserting that he was impaired at the time of his inculpatory statements to police. We disagree. When conducting a weight of the evidence review, this Court "must first determine whether, based on all the credible evidence, a different finding would not have been unreasonable and, if not, 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. Sanders, 185 A.D.3d 1280, 1284, 128 N.Y.S.3d 350 [2020] [internal quotation marks, brackets and citations omitted], lv denied ––– N.Y.3d ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2020 WL 6588671 [Oct. 30, 2020] ; see People v. Callahan, 186 A.D.3d 943, 943–944, 128 N.Y.S.3d 370 [2020] ). In conducting this analysis, "we view the evidence in a neutral light and defer to the jury's credibility assessments" ( People v. Criss, 151 A.D.3d 1275, 1276, 58 N.Y.S.3d 605 [2017], lv denied 30 N.Y.3d 979, 67 N.Y.S.3d 581, 89 N.E.3d 1261 [2017] ). As relevant here, the People were required to establish that defendant, being at least 18 years old, "engage[d] in oral ... or anal sexual conduct with [the victim when she was] less than [15] years old" ( Penal Law § 130.45[1] ), "engage[d] in sexual intercourse with [the victim when she was] less than [15] years old" ( Penal Law § 130.30[1] ), "subject[ed] [the victim] to sexual contact without [her] consent" ( Penal Law § 130.55 ), and "knowingly act[ed] 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] ).

At trial, the victim testified that she was born in November 2002. She recounted three alleged incidents of sexual abuse by defendant between December 2016 and February 2017, explaining that she lived with defendant, her mother, a sister and two of defendant's children during that time. As to an incident that occurred in or around December 2016, the victim testified that defendant entered her room while she was doing homework and told her to come to the bathroom, where he locked the doors, told her to sit on the sink, and had vaginal intercourse with her for "five or six minutes." The victim recalled that defendant told her not to tell anyone about the encounter. The victim recounted another encounter in January 2017, explaining that defendant walked into the bathroom when she was about to take a shower and told her, "This will only take a few minutes." She testified that defendant then brought her to his bedroom, locked the doors, had her lie on her back and performed oral sex on her. Defendant then told her to get on her stomach and he "put his penis in her behind." With respect to the third incident – which allegedly occurred on February 6, 2017 – the victim testified that she was sitting on the couch when defendant came over, touched her breasts and "[r]ubbed the inside of [her] vagina." According to the victim, defendant also asked her to touch his penis on that occasion and she complied. The victim testified that the encounter ended when defendant's son returned home and defendant pushed her away. After this incident, the victim went to school and told a friend about the encounters. The principal and the police then got involved.

The victim acknowledged on cross-examination that, when she was undergoing a sexual assault examination after the February 2017 incident, she told one of the examining doctors that defendant never tried to put his penis in her vagina. She also conceded having told the grand jury that she was the one who pushed defendant off of her during the February 2017 incident, instead of the other way around. Additionally, the victim acknowledged that, in November 2015, she falsely reported to school officials that defendant's son had impregnated her, explaining that she fabricated that allegation because she was afraid to name defendant as the true perpetrator. The victim's mother also testified, stating that, in 2015, defendant installed a lock on the inside of two doors in their bedroom purportedly to deter the children from stealing candy from their room.

The People also elicited testimony from Richard Hallett, a police lieutenant who interviewed defendant on February 6, 2017, and obtained defendant's written statement. In the statement, defendant admitted that he touched the victim's vagina in February 2017 and that he had gotten on top of her in January 2017 and "maybe" engaged in anal sex with her. As to the incident in or around December 2016, defendant acknowledged that he and the victim were in the bathroom together but denied engaging in vaginal intercourse, claiming that he merely placed his penis "between her legs." Hallet testified that defendant did not appear impaired at any point during the interview, and two other investigators described defendant – who had driven to the interview without incident – as lucid and oriented when they interacted with him before the interview.

A nurse practitioner who conducted a sexual assault examination of the victim on February 7, 2017 explained that she took swabs of the victim's breasts, mouth, vagina and rectal area and recalled seeing "a small amount of irritation" on the victim's labia. Besides that observation, the examination was otherwise unremarkable. A serologist who tested the swabs revealed that no semen was found on them, but "prostate specific antigen" – which indicates the presence of seminal fluid – was found on the anal swab and blood was found in the crotch of the victim's underwear. A forensic scientist performed a DNA analysis of the evidence obtained during the sexual assault examination, finding DNA that matched either defendant or his biological paternal relatives in the blood on the victim's underwear. The swabs taken from the victim's breasts also contained DNA "from at least two donors," with the victim being the major contributor and insufficient information to determine the identity of the second donor. As to the prostate specific antigen found on the anal swab, the forensic scientist testified that it contained "a partial mixture profile that was consistent with DNA from at least two male donors," but the identity of the donors could not be identified.

The People also elicited testimony from a psychiatric social worker, who explained that sexually abused children often exhibit symptoms of Child Sexual Abuse Accommodation Syndrome (hereinafter CSAAS) (see People v. Spicola, 16 N.Y.3d 441, 465–466, 922 N.Y.S.2d 846, 947 N.E.2d 620 [2011], cert denied 565 U.S. 942, 132 S.Ct. 400, 181 L.Ed.2d 257 [2011] ). The social worker explained that symptoms of CSAAS include "[d]elayed or conflicted disclosure" and "recantation or retraction" of the allegations. He further revealed that, in his treatment of approximately 3,100 abused children, "all of them delayed in disclosing that they had been sexually molested." Finally, the People proffered evidence that defendant was born in 1976 and was thus more than 18...