People v. Fernandez

• Decision Date: 16 May 2013
• Parties: The PEOPLE of the State of New York, Respondent, v. Marcos A. FERNANDEZ, Appellant.
• Court: New York Supreme Court — Appellate Division

106 A.D.3d 1281
968 N.Y.S.2d 603
2013 N.Y. Slip Op. 03512

The PEOPLE of the State of New York, Respondent,
v.
Marcos A. FERNANDEZ, Appellant.

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

May 16, 2013.

Cynthia Feathers, Glens Falls, for appellant.

D. Holley Carnright, District Attorney, Kingston (Jason J. Kovacs of counsel), for respondent.

[968 N.Y.S.2d 604]

Before: PETERS, P.J., STEIN, SPAIN and GARRY, JJ.

SPAIN, J.

[106 A.D.3d 1281]Appeal from a judgment of the County Court of Ulster County (McDonough, J.), rendered December 20, 2011, upon a verdict convicting defendant of the crimes of sexual abuse in the first degree and endangering the welfare of a child.

In 2008, the victim disclosed to her mother that defendant, a male teenage relative, had sexually abused her on several occasions while visiting her grandparents' house in Ulster County [106 A.D.3d 1282]between August 2005 and the end of December 2005, when the victim was eight years old and defendant was 17 (age 18 at Christmas 2005). Defendant resided in that house and was raised there by his aunt ¹ and uncle, whom he referred to as his parents; the victim referred to them as her grandparents. The abuse was alleged to have occurred during visits on weekends and holidays that coincided with family gatherings, when the victim's father drove her and her sisters from their residence in Orange County to visit her grandparents and family. Defendant was indicted and, after a jury trial, convicted of sexual abuse in the first and second degrees and endangering the welfare of a child, and acquitted of rape in the first degree and course of sexual conduct against a child in the first and second degrees alleged for the same time period. On appeal, a new trial was ordered ² based upon an error by the trial court in precluding testimony from the victim's family members regarding her reputation for truthfulness ( 74 A.D.3d 1379, 903 N.Y.S.2d 176 [2010],affd.17 N.Y.3d 70, 926 N.Y.S.2d 390, 950 N.E.2d 126 [2011] ). After a second jury trial, defendant was again convicted of sexual abuse in the first degree and endangering the welfare of a child and sentenced to four months of incarceration and 10 years of postrelease supervision on the top count. Defendant now appeals.³

Defendant's primary contention on appeal is that the jury's verdict is contrary to the weight of the credible evidence, pointing to perceived inconsistencies and weaknesses in the victim's account of the abuse, her reputation for untruthfulness, and the claimed inherent unbelievability of her testimony that she was alone with and abused by defendant numerous times in a small house filled with many relatives. In considering defendant's claim, we view the evidence in a neutral light and, since we find that an acquittal would not have been unreasonable, we must, “like the trier of fact below, ‘weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony’ ” ( People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987], quoting People ex rel. MacCracken v. Miller, 291 N.Y. 55, 62, 50 N.E.2d 542 [1943];see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 [2006] ). Given the lack of physical evidence or eyewitnesses, as is commonly true in sexual assaults, the victim's testimony about the abuse stood in stark contrast to defendant's[106 A.D.3d 1283]testimony denying, in all respects, the victim's account of sexual contact, which presented a “classic credibility issue” ( People v. Allen, 13 A.D.3d 892, 894, 787 N.Y.S.2d 417 [2004],lv. denied

[968 N.Y.S.2d 605]

4 N.Y.3d 883, 798 N.Y.S.2d 728, 831 N.E.2d 973 [2005] [internal quotation marks and citation omitted] ); indeed, “[the victim's] credibility was the central issue for the jury to resolve” (17 N.Y.3d 70, 78, 926 N.Y.S.2d 390, 950 N.E.2d 126 [2011] ).

The victim, age 14 at trial, testified that on at least three occasions between August and December 2005 (she was not able to specify dates), when she was eight years old, she visited her grandparents' house on weekends and holidays and was alone naked with defendant in his second floor bedroom. Each time, defendant moved a small nightstand to block the door and, after it was over and they were both dressed, defendant would check the hallway and, if clear, push her out of his room; she estimated that the incidents lasted from 5 to 60 minutes. On the first and third occasion, defendant got undressed and removed her clothing, put her on his bed and touched or kissed every intimate part of her body and put his penis in her vagina, mouth and “butt.” She was lured into defendant's bedroom the first time by the promise of gum and money in exchange for massaging or scratching his back.

On the second occasion, she recalled what she was wearing, that defendant removed her clothing and that she and defendant were naked under the covers, although she could not remember the sexual contact. She further related that her older sister, then age nine, interrupted the encounter when she knocked on the door and pushed the door open, and defendant ran behind the door while the victim remained under the covers up to her neck; her sister asked what they were doing and why the television was off, and defendant said he was changing and that he had turned it off. The sister also testified, corroborating that she and the victim visited and stayed overnight more than four times during the period in issue. She further related that one time she found defendant and the victim alone in his bedroom and, when she opened the door, she observed the victim in defendant's bed under the covers with only her face exposed, defendant moved behind the door, his chest was naked (she could not see below the waist), and he said he was changing. Her memory was that the television was on and the door was hard to open although she did not observe anything blocking the door, and she did not “think anything” of it at the time. She also confirmed that she would sometimes hang out in defendant's bedroom and play games or listen to music with him. While there were discrepancies in some of the details, they were fully explored and highlighted for the jury, and it is “not uncommon [106 A.D.3d 1284]for young children to be uncertain and even inconsistent in their trial testimony” ( People v. Raymo, 19 A.D.3d 727, 728, 796 N.Y.S.2d 448 ...