People v. Gertz

• Decision Date: 14 April 2022
• Docket Number: 111618
• Parties: The PEOPLE of the State of New York, Respondent, v. Christopher GERTZ Jr., Appellant.
• Court: New York Supreme Court — Appellate Division

204 A.D.3d 1166

166 N.Y.S.3d 739

The PEOPLE of the State of New York, Respondent,

v.Christopher GERTZ Jr., Appellant.

111618

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

Calendar Date: February 15, 2022

Decided and Entered: April 14, 2022

Matthew C. Hug, Albany, for appellant.

David J. Clegg, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), for respondent.

Before: Garry, P.J., Lynch, Clark, Reynolds Fitzgerald and Fisher, JJ.

MEMORANDUM AND ORDER

Reynolds Fitzgerald, J. Appeal from a judgment of the County Court of Ulster County (Williams, J.), rendered February 21, 2019, upon a verdict convicting defendant of the crime of sexual abuse in the first degree.

In December 2017, defendant was charged in a four-count indictment with two counts of sexual abuse in the first degree (counts 1 and 2), one count of assault in the second degree (count 3) and one count of assault in the third degree (count 4). The two counts of sexual abuse in the first degree stem from allegations that defendant subjected the victim to sexual contact. Prior to trial, defendant moved to dismiss counts 1 and 2 of the indictment as duplicitous, sever counts 3 and 4 as not properly joinable (see CPL 200.20 ) and dismiss the indictment in its entirety due to the joint presentation of the separate charges. County Court dismissed count 2 as duplicitous, severed counts 3 and 4 and denied the remainder of defendant's motion.¹ Following a jury trial, defendant was convicted of sexual abuse in the first degree as charged in count 1. County Court thereafter determined that defendant was a persistent felony offender and sentenced him to a prison term of 15 years to life. Defendant appeals.

Initially, defendant contends that his conviction is not supported by legally sufficient evidence and is against the weight of the evidence. However, defendant's "legal sufficiency claim is unpreserved because his general motion for a trial order of dismissal did not include arguments directed at specific deficiencies in the proof" ( People v. Youngs, 175 A.D.3d 1604, 1606, 110 N.Y.S.3d 73 [2019] ; see People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946 [2008] ). "Nevertheless, in reviewing defendant's challenge to the weight of the evidence, we necessarily determine whether all of the elements of the charged crime[ ] were proven beyond a reasonable doubt" ( People v. Barzee, 190 A.D.3d 1016, 1017, 138 N.Y.S.3d 718 [2021] [internal quotation marks and citations omitted], lv denied 36 N.Y.3d 1094, 144 N.Y.S.3d 110, 167 N.E.3d 1245 [2021] ; see People v. Harris, 186 A.D.3d 907, 908, 127 N.Y.S.3d 655 [2020], lv denied 36 N.Y.3d 1120, 146 N.Y.S.3d 219, 169 N.E.3d 577 [2021] ). "In conducting a weight of the evidence review, we must view the evidence in a neutral light and determine first whether a different verdict would have been unreasonable and, 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. Barzee, 190 A.D.3d at 1017–1018, 138 N.Y.S.3d 718 [internal quotation marks and citations omitted]; see People v. Brisman, 200 A.D.3d 1219, 1219, 157 N.Y.S.3d 599 [2021], lv denied 37 N.Y.3d 1159, 160 N.Y.S.3d 687, 181 N.E.3d 1115 [2022] ). As relevant here, "[a] person is guilty of sexual abuse in the first degree when he or she subjects another person to sexual contact ... [w]hen the other person is less than [13] years old and the actor is [21] years old or older" ( Penal Law § 130.65[4] ).

At trial, the People produced testimony from, among others, the victim, the victim's mother (hereinafter the mother), an investigator with the Ulster County Family and Child Advocacy Center and a State Police forensic scientist. The victim described where the sexual contact took place, what she was wearing and the manner of the sexual contact, including that defendant unbuckled her pants, unzipped her zipper, pulled her pants down and touched her vagina and breasts. The victim also testified that defendant took a picture of her using his cell phone and that, although her eyes were closed, she saw a flash and heard a click. The mother described the manner in which the victim disclosed the sexual contact to her the next morning and how the victim responded to defendant after the mother confronted him with the allegations.

The child advocacy center investigator testified that he was unable to immediately locate defendant to obtain his clothes and to collect evidence on his hands, but testified as to how he collected the victim's clothing,² took photographs of the scene and obtained DNA buccal swabs from the victim and her male siblings. The investigator further testified regarding his efforts to locate defendant and how he subsequently obtained physical custody of defendant and his cell phone³ in Indiana. A State Police forensic scientist testified that she performed serology and DNA analysis on the victim's underwear, pants and the inside of her T-shirt. The analysis conducted on the inside zipper area of the pants and the inside chest area of the T-shirt yielded results of at least two male donors with major contributors being defendant and his son. The analysis of the buttonhole area and zipper pull-tab area of the victim's pants yielded results of a single-source genealogical DNA profile that matched the DNA profiles of defendant and his son. The analysis of the inside crotch of the underwear yielded results of at least two male donors but was insufficient for any comparisons.

Although the victim's testimony regarding the sexual contact contained some inconsistencies, "this Court has long recognized that it is not uncommon for young children to be uncertain and even inconsistent in their trial testimony" ( People v. Fournier, 137 A.D.3d 1318, 1320, 26 N.Y.S.3d 796 [2016] [internal quotation marks, brackets and citations omitted], lv denied 28 N.Y.3d 929, 40 N.Y.S.3d 357, 63 N.E.3d 77 [2016] ). "Having seen and heard the victim's testimony, which was specific as to the event, and noting that she was cross-examined, we find that the jury was entitled to credit her testimony. This is particularly so given the victim's prompt ‘matter of fact’ disclosure to her mother, which served to corroborate her testimony" ( id. [citation omitted]; see People v. Rosario, 17 N.Y.3d 501, 511–513, 934 N.Y.S.2d 59, 958 N.E.2d 93 [2011] ; People v. Horton, 173 A.D.3d 1338, 1340, 104 N.Y.S.3d 363 [2019], lv denied 34 N.Y.3d 933, 109 N.Y.S.3d 701, 133 N.E.3d 402 [2019] ; People v. Madsen, 168 A.D.3d 1134, 1136–1137, 90 N.Y.S.3d 396 [2019] ; People v. Hackett, 167 A.D.3d 1090, 1093, 89 N.Y.S.3d 429 [2018] ). Moreover, the victim "was thoroughly cross-examined regarding the inconsistencies in her testimony, and there is nothing in the record before us that rendered her testimony inherently unbelievable or incredible as a matter of law" ( People v. Alexander, 160 A.D.3d 1121, 1123, 75 N.Y.S.3d 315 [2018], lv denied 31 N.Y.3d 1144, 83 N.Y.S.3d 426, 108 N.E.3d 500 [2018] ). According deference to the jury's credibility determinations, we find that the verdict is supported by the weight of the evidence (see People v. Fournier, 137 A.D.3d at 1320, 26 N.Y.S.3d 796 ).

Defendant next contends that County Court deprived him of his right to confront a witness when it limited his cross-examination of the mother regarding her mental illness. "A defendant has the constitutional right to confront witnesses through cross-examination; however, that right is not absolute" ( People v. Gooley, 156 A.D.3d 1231, 1232, 69 N.Y.S.3d 127 [2017] [citations omitted], lvs denied 31 N.Y.3d 984, 985, 77 N.Y.S.3d 661, 663, 102 N.E.3d 438, 440 [2018]). "A trial court may impose reasonable limits on a defendant's cross-examination of a witness based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness's safety, or interrogation that is repetitive or only marginally relevant" ( People v. Gannon, 174 A.D.3d 1054, 1060, 104 N.Y.S.3d 770 [2019] [internal quotation marks, brackets and citations omitted], lv denied 34 N.Y.3d 980, 113 N.Y.S.3d 632, 137 N.E.3d 2 [2019] ). "Whatever the rights of a witness to privacy and freedom from harassment, where the testimony is crucial, the defense should have the right to show that the witness had a mental illness which may have affected his [or her] ability to perceive, recall and relate events accurately" ( People v. Freshley, 87 A.D.2d 104, 111–112, 451 N.Y.S.2d 73 [1982] [citations omitted]; see People v. Baranek, 287 A.D.2d 74, 78, 733 N.Y.S.2d 704 [2001] ; People v. Arnold, 177 A.D.2d 633, 634–635, 576 N.Y.S.2d 339 [1991], lv denied 79 N.Y.2d 853, 580 N.Y.S.2d 724, 588 N.E.2d 759 [1992] ; People v. Dudley, 167 A.D.2d 317, 320–321, 562 N.Y.S.2d 66 [1990] ).

Defendant was permitted to question the mother about whether she was experiencing any symptoms related to her mental illness at the time of the incident that could have affected her recollection of the incident and question her regarding the medications that she might have been taking at that time (see People v. Gooley, 156 A.D.3d at 1233, 69 N.Y.S.3d 127 ). In our view, although County Court imposed certain limitations on the scope of defendant's cross-examination of the mother, defendant was nonetheless permitted to elicit testimony from her regarding whether she had a mental illness that might have affected her ability to perceive, recall and relate the incident in question accurately (see People v. Baranek, 287 A.D.2d at 78, 733 N.Y.S.2d 704 ; People v. Arnold, 177 A.D.2d at 634–635, 576 N.Y.S.2d 339 ; People v. Dudley, 167 A.D.2d at 320–321, 562 N.Y.S.2d 66 ; People v. Freshley, 87 A.D.2d at 111–112, 451 N.Y.S.2d 73 ). Accordingly, we find that County Court did not abuse its discretion in limiting defendant's cross-examination of the mother.

Defendant further asserts...