People v. Green

• Decision Date: 03 July 2013
• Citation: 968 N.Y.S.2d 685,108 A.D.3d 782,2013 N.Y. Slip Op. 05009
• Parties: The PEOPLE of the State of New York, Respondent, v. Marcus GREEN, Appellant.
• Court: New York Supreme Court — Appellate Division

108 A.D.3d 782
968 N.Y.S.2d 685
2013 N.Y. Slip Op. 05009

The PEOPLE of the State of New York, Respondent,
v.
Marcus GREEN, Appellant.

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

July 3, 2013.

[968 N.Y.S.2d 687]

Mitch Kessler, Cohoes, for appellant, and appellant pro se.

P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), for respondent.

Before: LAHTINEN, J.P., SPAIN, McCARTHY and EGAN JR., JJ.

SPAIN, J.

[108 A.D.3d 783]Appeal from a judgment of the Supreme Court (Lamont, J.), rendered June 17, 2008 in Albany County, upon a verdict convicting defendant of the crimes of course of sexual conduct against a child in the first degree and endangering the welfare of a child (three counts).

In October 2003, the three child victims moved into a house in the City of Albany shared by defendant, his girlfriend (who had become custodian of the victims after their mother's death) and the couple's four children. Defendant moved out of the home in January 2005, the day after victim C disclosed to the girlfriend that defendant had acted inappropriately towards her; almost two years later, victim A disclosed that defendant had subjected him to oral and anal sexual contact between 2003 and 2005. Victim B then disclosed that defendant had subjected him to sexual contact as well. As a result, defendant was arrested and charged by indictment with the crimes of course of sexual conduct against a child in the first degree related to victim A and three counts of endangering the welfare of a child.¹

All three victims testified at the 2008 jury trial, at which time victim A was 12 years old, victim B was 13 years old and

[968 N.Y.S.2d 688]

victim C was 11 years old. Defendant was convicted of the crimes of course of sexual conduct against a child in the first degree and three counts of endangering the welfare of a child, one count with respect to each victim. Defendant was sentenced to an aggregate prison term of 25 years and five years of postrelease supervision, and he now appeals.

First, defendant argues that Supreme Court erred in denying his challenge for cause to a prospective juror, who revealed a business relationship with an Albany police officer—who was not a potential witness—and personal relationships with other nontestifying Albany police officers. A prospective juror is disqualified pursuant to CPL 270.20(1)(c) if the juror has certain enumerated relationships with the parties, the witnesses or counsel or, as relevant here, if “he [or she] bears some other relationship to any such person of such nature that it is likely to preclude him [or her] from rendering an impartial verdict.” [108 A.D.3d 784]Here, although he had relationships with some Albany police officers, the prospective juror had no connection to or personal knowledge of any of the potential police department witnesses ( see People v. Colon, 71 N.Y.2d 410, 418–419, 526 N.Y.S.2d 932, 521 N.E.2d 1075 [1988],cert. denied487 U.S. 1239, 108 S.Ct. 2911, 101 L.Ed.2d 943 [1988];compare People v. Furey, 18 N.Y.3d 284, 288, 938 N.Y.S.2d 277, 961 N.E.2d 668 [2011] ). Indeed, there is no evidence in the record that he would not have been impartial. In response to questioning, he did not indicate that he was biased, that he would be inclined to give the testimony of a police officer more weight or credibility, or that he would not be a fair and impartial juror ( compare People v. Nicholas, 98 N.Y.2d 749, 752, 751 N.Y.S.2d 820, 781 N.E.2d 884 [2002];People v. Jones, 45 A.D.3d 1178, 1178–1179, 845 N.Y.S.2d 875 [2007] ). Moreover, when questioned by defense counsel, he confirmed that he would not find defendant guilty unless the People proved their case beyond a reasonable doubt. Accordingly, as “ ‘[n]umerous cases have held that a juror's relationship with a [nontestifying] police officer ... [is] insufficient to constitute implied bias[,]’ ” it was not error for Supreme Court to deny defendant's challenge for cause ( People v. Pickren, 284 A.D.2d 727, 727, 728 N.Y.S.2d 792 [2001],lv. denied96 N.Y.2d 923, 732 N.Y.S.2d 640, 758 N.E.2d 666 [2001], quoting People v. Butts, 140 A.D.2d 739, 741, 527 N.Y.S.2d 880 [1988];see People v. Colon, 71 N.Y.2d at 418–419, 526 N.Y.S.2d 932, 521 N.E.2d 1075;People v. Stafford, 302 A.D.2d 325, 326–327, 756 N.Y.S.2d 39 [2003],lv. denied99 N.Y.2d 658, 760 N.Y.S.2d 123, 790 N.E.2d 297 [2003];People v. Jones, 299 A.D.2d 283, 283, 751 N.Y.S.2d 173 [2002],lv. denied99 N.Y.2d 655, 760 N.Y.S.2d 120, 790 N.E.2d 294 [2003] ).

Defendant's contention—that the testimony of the two older victims recounting their initial disclosures was inadmissible because it was not established that their disclosures occurred at the first suitable opportunity—is not preserved for our review since he did not object to or move to strike this testimony at trial ( see People v. Stearns, 72 A.D.3d 1214, 1218, 898 N.Y.S.2d 348 [2010],lv. denied15 N.Y.3d 778, 907 N.Y.S.2d 467, 933 N.E.2d 1060 [2010];People v. Shook, 294 A.D.2d 710, 712, 743 N.Y.S.2d 573 [2002],lv. denied98 N.Y.2d 702, 747 N.Y.S.2d 421, 776 N.E.2d 10 [2002];People v. Archer, 232 A.D.2d 820, 822, 649 N.Y.S.2d 204 [1996],lv. denied89 N.Y.2d 1087, 660 N.Y.S.2d 381, 682 N.E.2d 982 [1997] ). Moreover, defendant did not object to the victims' testimony but, rather, elicited on cross-examination of the two older victims the fact that they did not disclose the abuse when they had

[968 N.Y.S.2d 689]

the opportunity to do so, away from defendant's influence. Thus, Supreme Court properly provided the prompt outcry jury instruction over defendant's belated objection that the testimony had been inadmissible ( seeCPL 300.10[2]; see also People v. Bright, 261 A.D.2d 192, 193, 690 N.Y.S.2d 44 [1999],lv. denied93 N.Y.2d 967, 695 N.Y.S.2d 52, 716 N.E.2d 1097 [1999] ).

Notably, the victims' testimony regarding the circumstances surrounding their initial disclosures was limited to their delayed reporting of defendant's behavior to the girlfriend, testimony which did not elaborate as to the details or type of abuse disclosed and was not bolstered by any testimony or reports by [108 A.D.3d 785]others of their demeanor at the time of the disclosures. Clearly, the prompt outcry instruction was relevant to their testimony, particularly considering that, on cross-examination and in summation, defendant pointed out that each of the older two victims had delayed disclosure and that they each continued to associate with defendant after the abuse had ended. Moreover, Supreme Court's instruction was fair, balanced, followed the Criminal Jury Instructions very closely ( see CJI2d[N.Y.] Prompt Outcry) and, “ ‘taken as a whole, [it] conveyed to the jury the correct standard’ ” ( People v. Medina, 18 N.Y.3d 98, 104, 936 N.Y.S.2d 608, 960 N.E.2d 377 [2011], quoting People v. Drake, 7 N.Y.3d 28, 32, 817 N.Y.S.2d 583, 850 N.E.2d 630 [2006] ). Nor do we find that defendant was prejudiced by the instruction; if anything, the charge provided additional safeguards to defendant by cautioning the jury to consider the victims' delayed disclosures in evaluating their credibility. Indeed, the prompt outcry charge is usually a limiting instruction that is favorable to and requested by a defendant (...