People v. Farnham
| Decision Date | 25 February 2016 |
| Citation | 136 A.D.3d 1215,26 N.Y.S.3d 378 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Gene FARNHAM, Appellant. |
| Court | New York Supreme Court — Appellate Division |
136 A.D.3d 1215
26 N.Y.S.3d 378
The PEOPLE of the State of New York, Respondent,
v.
Gene FARNHAM, Appellant.
Supreme Court, Appellate Division, Third Department, New York.
Feb. 25, 2016.
Justin C. Brusgul, Voorheesville, for appellant, and appellant pro se.
P. David Soares, District Attorney, Albany (Brittany L. Grome of counsel), for respondent.
Before: PETERS, P.J., GARRY, EGAN JR., DEVINE and CLARK, JJ.
CLARK, J.
Appeal from a judgment of the Supreme Court (Lamont, J.), rendered November 9, 2012 in Albany County, upon a verdict convicting defendant of the crimes of predatory sexual assault against a child and endangering the welfare of a child (two counts).
In November 2011, defendant (born in 1960) was charged in a five-count indictment with the crimes of predatory sexual assault against a child (two counts), endangering the welfare of a child (two counts) and tampering with a witness in the fourth degree, stemming from allegations that he sexually assaulted a six-year-old child (hereinafter the victim) and urged someone not to appear at the grand jury as directed to by subpoena. Defendant thereafter moved to, among other things, dismiss the indictment, arguing that the evidence before the grand jury was legally insufficient to support the charged crimes. Supreme Court partially granted the motion by dismissing the tampering with a witness charge and, following a jury trial, defendant was convicted of the remaining four charges.
Thereafter, pursuant to defendant's CPL 330.30 motion to set aside the verdict, Supreme Court dismissed one of the two counts of predatory sexual assault against a child on the ground that the evidence was legally insufficient to support the verdict on that count. Defendant was thereafter sentenced to 25 years to life in prison for his conviction of predatory sexual assault against a child, to run concurrently with two one-year terms of incarceration for each count of endangering the welfare of a child. Defendant appeals.
As an initial matter, defendant's argument regarding the legal sufficiency of the People's evidence is unpreserved for our review inasmuch as he failed to make a specific motion to dismiss at the close of the People's evidence (see People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946 [2008] ; People v. Briggs, 129 A.D.3d 1201, 1202, 13 N.Y.S.3d 255 [2015], lv. denied 26 N.Y.3d 1038, 22 N.Y.S.3d 167, 43 N.E.3d 377 [2015] ). However,
given that a different verdict would not have been unreasonable, we will nonetheless endeavor to "evaluate the adequacy of the evidence as to each element of the crimes for which [defendant] was convicted as part of our weight of the evidence review" (People v. Launder, 132 A.D.3d 1151, 1151, 18 N.Y.S.3d 747 [2015] ; see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ).
The crime of predatory sexual assault against a child requires the People to prove that defendant, being 18 years old or more, committed the crime of rape in the first degree and that the victim was less than 13 years old (see Penal Law § 130.96 ; People v. Beauharnois, 64 A.D.3d 996, 1000, 882 N.Y.S.2d 589 [2009], lv. denied 13 N.Y.3d 834, 890 N.Y.S.2d 450, 918 N.E.2d 965 [2009] ). As relevant here, "[a] person is guilty of rape in the first degree when he or she engages in sexual intercourse with another person ... [w]ho is less than [11] years old" (Penal Law § 130.35[3] ). " ‘Sexual intercourse’ has its ordinary meaning and occurs upon any penetration, however slight" (Penal Law § 130.00[1] ). In order to convict defendant of endangering the welfare of a child, the People had to prove that defendant "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] ). Focusing his argument largely on the credibility of the victim, defendant contends that, other than the victim's own testimony, the trial was devoid of any evidence of sexual abuse and, therefore, the weight of the evidence does not support his conviction for these crimes. We disagree and affirm.
At trial, the victim testified that she was eight years old, having been born in September 2003. The victim further testified that, on the day of her sixth birthday party in September 2009, defendant brought her to a storage unit where they "did the adult secret thing." Among other details, she explained that defendant put her on top of a dresser in the storage room, without her pants on, and pulled out his "private" from his zipper, and then put his "private" into her "private"...
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