People v. Gassett, 2004 NY Slip Op 50890(U) (NY 5/27/2004)
| Citation | 2004 NY Slip Op 50890(U) |
| Decision Date | 27 May 2004 |
| Docket Number | 3403/2003. |
| Parties | THE PEOPLE OF THE STATE OF NEW YORK, v. JOHN GASSETT, Defendant. |
| Court | New York Court of Appeals |
THE HONORABLE ROBERT T. JOHNSON, District Attorney, Bronx County, New York, BY: JILL S. STARISHEVSKY, ESQ., Assistant District Attorney, For the People of the State of New York.
JUAN PABLO VEGAROMERO, ESQ., For John Gassett.
Following a bench trial, Defendant, John Gassett, was found guilty of two counts of Attempted Sexual Abuse in the First Degree (Penal Law § § 110/130.65 [1] and [3]), and one count of Endangering the Welfare of a Child (Penal Law § 260.10 [1]). He now moves to set aside the verdict pursuant to CPL § 330.30.1 Defendant claims that: (1) the verdict was based on legally insufficient evidence;2 (2) the verdict was repugnant; and (3) the court improperly allowed the People to call a rebuttal witness prior to Defendant offering any evidence. In addition, Mr. Gassett has filed numerous pro se motions which the Court will incorporate into the instant CPL § 330.30 motion. These various arguments claim ineffectiveness of counsel. The motion is denied.
On Thursday July 3, 2003, eight-year-old Diamond,3 her younger brother Malik and their cousin Zaniera went from their home in Troy, New York to the home of their great aunt Thelma Gassett and her husband, the within Defendant. It is located at 150 West 225th Street, in Bronx County. That night, Diamond, Malik and Defendant slept in the bed in the bedroom while Zaniera and Thelma slept on the sofa in the living room. Defendant and Malik were on the two sides of the bed while Diamond was in the middle. Diamond wore her aunt's long night-shirt and a pair of panties while Defendant wore a T-shirt and pajama pants.
In the middle of the night, Diamond awoke because she had to use the bathroom. She noticed that she had urinated in the bed and, as a result, her panties were soiled. Diamond went to the bathroom and returned to the same soiled portion of the bed still wearing her soiled panties.
At approximately 5:00 a.m. on the morning of July 4th, Diamond awoke as Defendant, who was naked, got off the bed, turned her around from lying on her stomach, pulled her to the edge of the bed, sat her up, stood in front of her and repeatedly tried to "hump her" by attempting to spread her legs apart with his hands and place his penis on her vaginal area.4 Each time Defendant tried to spread her legs, Diamond closed them tight. At the time, Diamond was no longer wearing her panties even though she had never removed them. She cried and screamed; Thelma immediately appeared while Defendant was standing naked directly in front of her. Thelma asked Defendant, in sum and substance, Defendant replied, in sum and substance, "I was just trying to wake Diamond up to take her to the bathroom because she had wet the bed." Thelma then asked Diamond to go into the living room where she asked what had happened, and the girl told her that she woke up to use the bathroom, went back to lie down and woke again because Defendant was humping her.
Thelma contacted Diamond's aunt Lashere Eason, and, after their conversation, drove Diamond, Malik and Zaniera to Lashere's home in Troy, approximately two and one-half hours away. Defendant stayed behind. When she arrived, Thelma had a conversation with Lashere, and later, Diamond told Lashere what occurred.
On Sunday, July 6th, Diamond's mother Kareema Eason returned home and Lashere told her that Defendant did something to her. Diamond then told Kareema what happened and Kareema contacted the police and took Diamond to the hospital where she underwent a medical examination. On July 18 and 19, 2003, Detective William Fisher had telephone conversations with Kareema and Diamond, respectively, in which they informed him about what occurred on July 4th. The following day, Detective Fisher and his partner arrested Defendant at his home.
Thelma Gassett, Defendant's wife, claimed that Diamond was hospitalized approximately one week before this incident because her mother beat her for urinating in bed. Although Thelma further claimed that, as a result, Diamond still had noticeable red and black and blue marks and welts on her legs and chest on July 4th, Diamond's medical record shows no such injuries.
Thelma testified that on July 4th, at approximately 5:00 a.m., she awoke on her own to take the children to the bathroom. She stated that as she passed the bedroom, she saw Diamond sitting on the edge of the bed and Defendant standing to the side of her about one foot away. Although Thelma confirmed that Diamond had urinated in the bed, she noted that the youngster had urinated in a bed at her house in the past, but that she never told Diamond's mother.
Thelma acknowledged that Diamond repeatedly told her that Defendant had been humping her. Thelma claimed that she only told Defendant about Diamond's allegations after she called Lashere. Thelma also noted that Defendant had found Diamond's panties, but she did not know how he knew to look for them because she never told him that they were missing. Thelma also claimed that she never believed Diamond's allegation even though she not only left her house at 5:00 a.m. and drove two and one-half hours to Lashere's house with the children and without Defendant, but, in addition, on July 5th, she went to the local stationhouse to report this allegation that she did not consider credible. Thelma claimed that when she talked to Lashere in person, Lashere threatened to kill Defendant. However, she never told the police about this threat. Thelma also denied ever telling Lashere that she observed Defendant standing naked in front of Diamond.
Defendant, a convicted felon, testified that on July 4th, at approximately 5:00 a.m., when he went to change sleeping position, he felt a cold spot that woke him up. Defendant claimed that although the wet spot was directly underneath where Diamond was sleeping, he did not touch her. Defendant claimed that he took his shirt off, placed it on the wet spot to try to soak it up and left it there despite Thelma's testimony that she did not know where his shirt was even though, moments later, she felt the wet spot on the bed. Defendant stated that he then tried to wake Diamond in order to make her go the bathroom. However, Defendant then gave inconsistent and contradictory explanations as to what occurred next, including how he grabbed Diamond to pull her off of the bed, whether he was pulling Diamond off of the bed when Thelma walked in, and whether Thelma, in fact, walked into the bedroom. In addition, Defendant's explanations of these events contradicted his Grand Jury testimony as well as Thelma's testimony. Moreover, Defendant testified at trial that he was wearing green pajamas, similar to what he heard Thelma state in her testimony. However, in the Grand Jury, Defendant testified that they were black/greyish.
Defendant stated that although he considered Lashere's threat to kill him credible, he did not report it to the police. Defendant first claimed that he then left the apartment due to this threat and denied that Thelma threw him out. However, after being confronted with his Grand Jury testimony, Defendant acknowledged that Thelma stated to him, in sum and substance, "either you go or I go," even though she had denied making such a statement. Moreover, Defendant testified that when he went to work the next Monday, Thelma appeared and "took him back," even though he previously claimed that she did not "kick him out of the house."
In the course of their conversation on July 4th, in Troy, Thelma told Lashere that when she woke up, she saw Defendant standing in front of Diamond with no clothes on. However, in a later conversation with Lashere, Thelma denied making such a statement.
Defendant claims that: (1) Diamond's testimony did not establish his guilt beyond a reasonable doubt because her testimony is incredible as a matter of law and it also failed to establish that he attempted to subject her to sexual contact or use forcible compulsion; (2) the verdict is repugnant; (3) this Court violated CPL § § 320.20 and 260.30 by allowing the People to call Lashere Eason as a rebuttal witness prior to his offering any evidence; and (4) his counsel was ineffective because he did not hire a private investigator, his opening statement and direct and cross examinations were ineffectual, and he failed to call certain witnesses.
The People contend that Defendant's claim that the evidence was legally insufficient as a matter of law is unpreserved and unsubstantiated. As for Defendant's repugnancy claim, the People contend that this claim is both unpreserved and that the verdicts were logically reconcilable because the charges for which Defendant was acquitted were not conclusive as to any of the necessary elements of the charges for which Defendant was convicted. The People next contend that their being allowed to call the rebuttal witness prior to Defendant offering any evidence was proper because this witness would have otherwise been unavailable and the Court, as the finder of fact, was able to distinguish the direct and rebuttal evidence. Finally, the People contend that Defendant's ineffective assistance of counsel claim is baseless and the record is devoid of any evidence that Defendant disagreed with his counsel's trial strategy.
Criminal Procedure Law § 330.30 (1) states that "[a]t any time after rendition of a verdict of guilty and before sentence, the court may, upon motion of the defendant, set aside or modify the verdict or any part thereof upon . . . [a]ny ground appearing in the record which, if raised upon an appeal from a prospective judgment of conviction, would...
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