People v. Garcia

• Decision Date: 14 July 2016
• Citation: 2016 N.Y. Slip Op. 05519,141 A.D.3d 861,34 N.Y.S.3d 766
• Parties: The PEOPLE Of The State Of New York, Respondent, v. Angel GARCIA, Appellant.
• Court: New York Supreme Court — Appellate Division

141 A.D.3d 861

34 N.Y.S.3d 766

2016 N.Y. Slip Op. 05519

The PEOPLE Of The State Of New York, Respondent,

v.Angel GARCIA, Appellant.

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

July 14, 2016.

Matthew C. Hug, Albany, for appellant.

P. David Soares, District Attorney, Albany (Michael C. Wetmore of counsel), for respondent.

Before: McCARTHY, J.P., ROSE, DEVINE, CLARK and AARONS, JJ.

CLARK, J.

Appeal from a judgment of the County Court of Albany County (Herrick, J.), rendered September 17, 2014, upon a verdict convicting defendant of the crime of sexual abuse in the first degree (two counts).

In 2013, defendant was charged in a superseding indictment with two counts of sexual abuse in the first degree based upon his sexual contact with the victim (born in 1997) “on an unknown date on or about and between May 1, 2003 and October 1, 2003.” The victim disclosed the abuse to law enforcement in 2012 at the age of 15. Upon defendant's discovery demands and request for a bill of particulars, including a request for further specification as to the date and time of the alleged crimes, the People stated that the conduct constituting both counts of sexual abuse in the first degree occurred on the same date during the “daytime hours,” but that the victim could not recall the precise date on which the abuse occurred. County Court denied defendant's subsequent motion to dismiss the superseding indictment on the basis that, among other things, the time interval alleged was overly broad. Following a jury trial, defendant was convicted as charged and sentenced to two concurrent prison terms of five years, followed by 10 years of postrelease supervision. Defendant appeals.

Defendant contends that the verdict was against the weight of the evidence. Where, as here, a different verdict 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. Romero, 7 N.Y.3d 633, 643, 826 N.Y.S.2d 163, 859 N.E.2d 902 [2006] [internal quotation marks and citations omitted]; see People v. Colvin, 37 A.D.3d 856, 857, 828 N.Y.S.2d 716 [2007], lv. denied 8 N.Y.3d 944, 836 N.Y.S.2d 555, 868 N.E.2d 238 [2007] ). Here, the victim testified in detail about the circumstances surrounding the sexual contact to which defendant—her godfather—subjected her when she was six years old. In particular, the victim stated that she went to defendant's apartment to deliver food from her mother and to ask if defendant's granddaughter was available to play. She asserted that, while she was waiting in the living room, defendant came up behind her and began touching her vagina and, a few minutes later, grabbed her arm and brought her to the bedroom, where he placed her on the bed and again touched her vagina. While defendant asserts that the veracity of the victim's account was undermined by her prior inconsistent statements, as well as her parents' application for a U–Visa based on her status as a crime victim, such matters were explored on cross-examination and presented credibility issues for the jury (see People v. Thiel, 134 A.D.3d 1237, 1239, 21 N.Y.S.3d 745 [2015] ; People v. Fernandez, 106 A.D.3d 1281, 1285, 968 N.Y.S.2d 603 [2013] ). Viewing the evidence in a neutral light and according due deference to the jury's factual and credibility determinations, we are satisfied that the verdict was supported by the weight of the evidence (see People v. Brown, 114 A.D.3d 1017, 1018–1019, 981 N.Y.S.2d 154 [2014] ; People v. Galloway, 93 A.D.3d 1069, 1071, 940 N.Y.S.2d 699 [2012], lv. denied 19 N.Y.3d 996, 951 N.Y.S.2d 472, 975 N.E.2d 918 [2012] ).

Defendant also argues that the five-month period alleged in the superseding indictment deprived him of the ability to adequately prepare a defense and that the People did not allege the most particular time frame possible. “When time is not an essential element of an offense, the indictment, as supplemented by a bill of particulars, may allege the time in approximate terms[, so long as it] set[s] forth a time interval which reasonably serves the function of protecting [the] defendant's constitutional right to be informed of the nature and cause of the accusation” (People v. Watt, 81 N.Y.2d 772, 774, 593 N.Y.S.2d 782, 609 N.E.2d 135 [1993] [internal quotation marks and citations omitted]; accord People v. Porlier, 55 A.D.3d 1059, 1060, 865 N.Y.S.2d 732 [2008] ). “Reasonableness and fairness demand that the indictment state the date and time of the offense to the best of the People's knowledge, after a reasonably thorough investigation has been undertaken to ascertain such information” (People v. Morris, 61 N.Y.2d 290, 296, 473 N.Y.S.2d 769, 461 N.E.2d 1256 [1984] ; see People v. Jabot, 93 A.D.3d 1079, 1080, 941 N.Y.S.2d 311 [2012] ). In assessing whether a more precise date could have been ascertained through diligent efforts, we may consider the age and intelligence of the victim, the relevant circumstances and “the nature of the offense, including whether it is likely to occur at a specific time or is likely to be discovered immediately” (People v. Morris, 61 N.Y.2d at 296, 473 N.Y.S.2d 769, 461 N.E.2d 1256 ; see People v. Watt, 81 N.Y.2d at 774–775, 593 N.Y.S.2d 782, 609 N.E.2d 135 ). If we conclude that the People made diligent efforts, we then determine whether the time period alleged was reasonable by considering, among other factors, the ability of the victim to particularize the date of the offense and the passage of time between the alleged offense and the defendant's arrest and/or the date of the indictment (see People v. Morris, 61 N.Y.2d at 296, 473 N.Y.S.2d 769, 461 N.E.2d 1256 ).

Defendant failed to demonstrate that the People were aware of and disregarded a narrower time frame, and we are unpersuaded that they failed to make diligent efforts to ascertain the most precise time period. While the victim testified at trial that the abuse took place two weeks before her sister's birthday in July and that she had told the prosecutor this, the prosecutor stated, outside the presence of the jury, that the victim had never before discussed the date of the abuse with such specificity. The prosecutor asserted that, notwithstanding extensive questioning aimed at narrowing the time frame, the victim was previously only able to recall that her younger sister was crawling and learning to walk and that she was wearing shorts and flip flops at the time of the offenses. County Court credited the prosecutor's statement that the victim had never before given a two-week time frame, noting that the victim had made inconsistent statements regarding the time period. It is not implausible that the victim initially had difficulty recalling the date of the offenses, given that she was six years old at the time, did not disclose the abuse until roughly eight years later and, by her own account, had spent those eight years trying to suppress her memories of the incident. Her disclosure came only after defendant approached and apologized to her for what he had done. Additionally, defendant lived in the same apartment building as the victim and was a close family friend and, therefore, had regular access to the victim. Under all of these circumstances, including the nature of the offenses, the five-month period alleged in the superseding indictment was reasonable (see People v. Watt, 84 N.Y.2d 948, 950–951, 620 N.Y.S.2d 817, 644 N.E.2d 1373 [1994] ; People v. Griswold, 95 A.D.3d 1454, 1455, 944 N.Y.S.2d 346 [2012], lv. denied 19 N.Y.3d 997, 951 N.Y.S.2d 473, 975 N.E.2d 919 [2012] ; People v. Oglesby, 12 A.D.3d 857, 859, 787 N.Y.S.2d 401 [2004], lv. denied 5...