People v. Dickinson

• Decision Date: 16 April 2020
• Docket Number: 109325
• Parties: The PEOPLE of the State of New York, Respondent, v. Shannon DICKINSON, Appellant.
• Court: New York Supreme Court — Appellate Division

182 A.D.3d 783
122 N.Y.S.3d 797

The PEOPLE of the State of New York, Respondent,
v.
Shannon DICKINSON, Appellant.

109325

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

Calendar Date: February 13, 2020
Decided and Entered: April 16, 2020

Rural Law Center of New York, Castleton (Kelly L. Egan of counsel), for appellant.

Jason M. Carusone, District Attorney, Lake George (Rebecca Nealon of counsel), for respondent.

Before: Garry, P.J., Lynch, Mulvey, Aarons and Reynolds Fitzgerald, JJ.

MEMORANDUM AND ORDER

Lynch, J.

182 A.D.3d 783

In August 2015, defendant was charged by indictment with criminal sexual act in the first degree, criminal sexual act in the second degree, sexual abuse in the first degree, luring a child and endangering the welfare of a child. The indictment stemmed from defendant engaging in inappropriate sexual conduct with his then-girlfriend's 13–year–old daughter (hereinafter the victim) at a hotel in the Town of Queensbury, Warren County. Following a jury trial, defendant was convicted of sexual abuse in the first degree, luring a child and endangering the welfare of a child.¹ Defendant moved to set aside the verdict and for recusal, but County Court denied both motions. Thereafter, the court sentenced defendant, as a persistent felony offender, to concurrent prison terms of 15 years to life for his convictions of sexual

122 N.Y.S.3d 800

abuse in the first degree and luring a child, and to a concurrent term of one year for his conviction of endangering the welfare of a child. Defendant appeals.

Initially, defendant contends that his conviction of luring a child is not supported by legally sufficient evidence and is against the weight of the evidence, and his conviction of sexual abuse in the first degree is also against the weight of the evidence. "In conducting a legal sufficiency analysis, this Court views the evidence in the light most favorable to the People and evaluates whether there is any valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial and as a matter of law satisfy the proof and burden requirements for every element of the crime charged" ( People v. Flower, 173 A.D.3d 1449, 1450, 105 N.Y.S.3d 152 [2019] [internal quotation marks and citations omitted], lv denied 34 N.Y.3d 931, 109 N.Y.S.3d 752, 133 N.E.3d 458 [2019] ; see People v. Robinson, 156 A.D.3d 1123, 1124, 67 N.Y.S.3d 709 [2017], lv denied 30 N.Y.3d 1119, 77 N.Y.S.3d 344, 101 N.E.3d 985 [2018] ). In contrast, "[w]hen undertaking a weight of the

182 A.D.3d 784

evidence review, we must first determine whether, based on all the credible evidence, a different finding would not have been unreasonable and then, if not, 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. Kelsey, 174 A.D.3d 962, 963, 107 N.Y.S.3d 150 [2019] [internal quotation marks, brackets and citations omitted], lv denied 34 N.Y.3d 982, 113 N.Y.S.3d 671, 137 N.E.3d 41 [2019] ; see People v. Butkiewicz, 175 A.D.3d 792, 793, 107 N.Y.S.3d 181 [2019], lv denied 34 N.Y.3d 1076, 116 N.Y.S.3d 165, 139 N.E.3d 823 [2019] ).

As charged in the indictment, to convict defendant of luring a child, the People had to show that he "lure[d] a child into a ... building ... for the purpose of committing" the crime of criminal sexual act in the first degree ( Penal Law § 120.70[1] ; see Penal Law § 130.50[1] ). A person intends to commit criminal sexual act in the first degree when he or she intends to "engage[ ] in oral sexual conduct or anal sexual conduct with another person ... [b]y forcible compulsion" ( Penal Law § 130.50[1] ). To convict defendant of sexual abuse in the first degree, the People were required to show that he "subject[ed] another person to sexual contact ... [b]y forcible compulsion" ( Penal Law § 130.65[1] ). "[S]exual contact" is defined as "any touching of the sexual or other intimate parts of a person for the purpose of gratifying sexual desire of either party" ( Penal Law § 130.00[3] ).

At trial, the victim testified that she was born in December 2001. As to the incident, the victim testified that on July 28, 2015, defendant picked her up and they went to the hotel. She stated that she was wearing black and pink shorts and a white tank top. On their way, defendant stopped at a liquor store, where he purchased alcohol, and at a Dollar Store, where the victim purchased Gatorade to mix with the alcohol. According to the victim, defendant handed her two shooters filled with vodka, which she drank. At the hotel, defendant and the victim got a handicapped accessible room because defendant has a disability and was using a wheelchair. Once in the room, defendant made alcoholic drinks, which the victim drank, they ordered pizza and listened to music. After drinking five or six cups, the victim felt sick and vomited. She then fell asleep on the bed while defendant was sitting in

122 N.Y.S.3d 801

his wheelchair across the room. The victim further testified that, at some point, she woke up and observed that defendant was now in bed next to her, without his shirt, and that he began touching her intimate part with his finger and then with his tongue. The victim told defendant to stop and kicked his head, but, since she was still

182 A.D.3d 785

feeling sick, she "passed out again." According to the victim, when she woke up again, she observed that defendant was still next to her and that she was not wearing any clothes. She then got out of bed, grabbed extra clothes from the bag that she had brought and messaged her friend to ask him if she could come to his house. The victim also observed that she had some vaginal bleeding.

Thereafter, in the early morning of July 29, 2015, defendant drove the victim to the friend's house. The victim explained that she disclosed what had happened to the friend, as well as to her other friends. The victim also went to the police station and disclosed what had occurred. The victim acknowledged that she had gone to counseling and received in-patient treatment several times in the past due to her depression and other harmful behaviors. The victim also admitted that she had previously alleged that her father sexually abused her, but later recanted those allegations. She explained that those allegations of abuse against the father were true, but she recanted them because she did not want to end up in foster care. She also said that she had previously accused another male of touching her, but that she made those allegations when she was three years old and under her father's direction.

Various witnesses corroborated parts of the victim's testimony. The victim's friend testified confirming that the victim messaged him and that, when she came over the next morning, she was crying and told him that defendant had touched her. The testimony from the front desk managers at the hotel confirmed that defendant and a young girl checked into the hotel and that, after they checked out, there was vomit in their room. The owner of the liquor store also testified, confirming defendant's visit to the liquor store on the day of the incident, which was captured on the store's security camera. Two inmates at a correctional facility, who met defendant in jail, also testified. The inmates stated that defendant admitted to inappropriately touching the victim with his fingers at the hotel. Both inmates were cross-examined regarding their extensive criminal history.

A sexual assault nurse examiner (hereinafter SANE) testified that she conducted a sexual assault examination of the victim on July 30, 2015. The SANE noted that the victim claimed memory loss resulting from alcohol consumption. The victim also consistently described how and where the incident occurred. After the examination, the SANE noted that external trauma to the victim's body, as well as a small amount of bleeding, was consistent with the victim's description of the incident.

182 A.D.3d 786

The SANE further testified that the victim told her she had only changed her shirt since the assault, and the SANE collected the victim's clothing, including underwear and pants – but not the shorts that the victim testified to wearing at the time of the incident. A forensic scientist with the State Police testified concerning the DNA analysis that she performed on the victim's clothing that was recovered during the SANE's examination. The DNA testing revealed that defendant was the major contributor to the profiles from the swabs of the inside and outside of the underwear waistband, the inside and outside of the pants waistband and the cutting from the crotch area of the pants. The forensic scientist explained that being the major contributor meant that defendant and his biological paternal relatives could not be

122 N.Y.S.3d 802

excluded as being major contributors...