People v. Hayes

• Decision Date: 28 March 2013
• Citation: 2013 N.Y. Slip Op. 02108,104 A.D.3d 1050,962 N.Y.S.2d 443
• Parties: The PEOPLE of the State of New York, Respondent, v. David W. HAYES, Appellant.
• Court: New York Supreme Court — Appellate Division

104 A.D.3d 1050

962 N.Y.S.2d 443

2013 N.Y. Slip Op. 02108

The PEOPLE of the State of New York, Respondent,

v.David W. HAYES, Appellant.

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

March 28, 2013.

George J. Hoffman Jr., Albany, for appellant.

James A. Murphy III, District Attorney, Ballston Spa (Nicholas E. Tishler of counsel), for respondent.

Before: ROSE, J.P., STEIN, SPAIN and EGAN JR., JJ.

SPAIN, J.

Appeal from a judgment of the County Court of Saratoga County (Drago, J.), rendered August 14, 2009, upon a verdict convicting defendant of the crimes of sexual abuse in the first degree (four counts), course of sexual conduct against a child in the second degree, sexual abuse in the second degree (12 counts), sexual abuse in the third degree (four counts) and endangering the welfare of a child.

In January 2008, the victim, then age 15, disclosed to one of her parents that defendant had been subjecting her to sexual contact by touching her breasts and vaginal area. Defendant, a 39–year–old relative of the victim, was employed in a position in which he traveled frequently—for weeks or months at a time—and, when not deployed out of town, he lived with the victim's family during periods ranging from days to months. Upon defendant's return to the area from a business trip, he was questioned by investigators with the State Police, received Miranda warnings and made certain admissions; he signed a written statement and was arrested. Subsequently, defendant was indicted on the following 31 criminal counts alleging sexual contact perpetrated against the victim from the winter of 2002–2003, when the victim was 10 years of age, up until the fall of 2007, when the victim was 15 years of age: four counts of first degree sexual abuse (victim under age 11); 10 counts of course of sexual conduct against a child in the second degree (victim less than 11 or 13); 12 counts of second degree sexual abuse (victim under age 14); four counts of third degree sexual abuse (nonconsensual sexual contact); and endangering the welfare of a child.

Defendant's motion to suppress his statements to police was denied. At the close of proof at trial, upon the People's motion, count 8 ¹ of the indictment charging course of sexual conduct against a child in the second degree was amended (to expand the dates) ² and the remaining nine counts of course of sexual conduct against a child were dismissed (i.e., counts 5–7, 9–14). The victim, her mother, the investigators and defendant testified. Defendant was convicted by a jury of the remaining 22 counts and sentenced to an aggregate prison term of 12 years to be followed by postrelease supervision. Defendant now appeals.

Initially, as the People now concede, defendant's convictions of sexual abuse in the second degree under counts 15–21 of the indictment must be dismissed as inclusory concurrent counts of amended count 8. Counts 15–21 and amended count 8 cover the same time period: winter 2003–2004 through summer 2005. Amended count 8, course of sexual conduct against a child in the second degree, as charged to the jury,³ required proof that over a period of not less than three months, defendant, being 18 years old or more, engaged in two or more acts of sexual contact with a child less than 13 ( seePenal Law §§ 130.00[3]; 130.80[1][b] ). Likewise, sexual abuse in the second degree as charged in counts 15–21 required proof that defendant subjected a child less than 14 to sexual contact ( seePenal Law § 130.60[2] ). Given that it was, here, “impossible to commit [the greater crime] without concomitantly committing, by the same conduct, [the lesser offense]” ( CPL 1.20[37]; see People v. Beauharnois, 64 A.D.3d 996, 999–1000, 882 N.Y.S.2d 589 [2009],lv. denied13 N.Y.3d 834, 890 N.Y.S.2d 450, 918 N.E.2d 965 [2009] ), the sexual abuse counts (15–21) covering the same time period against the then under age 13 victim are lesser included offenses of amended count 8 charging course of sexual conduct against a child ( seeCPL 300.30[4] ). While defendant did not preserve this issue at trial by objecting to County Court's failure to submit the lesser charges “in the alternative only” ( CPL 300.40 [3][b] ), as a matter of law “[a] verdict of guilty upon the greatest count submitted is deemed a dismissal of every lesser count submitted” ( CPL 300.40 [3][b]; see People v. Cordato, 85 A.D.3d 1304, 1307, 924 N.Y.S.2d 649 [2011],lv. denied17 N.Y.3d 815, 929 N.Y.S.2d 803, 954 N.E.2d 94 [2011];People v. Beauharnois, 64 A.D.3d at 999–1000, 882 N.Y.S.2d 589;People v. Horton, 46 A.D.3d 1225, 1227, 850 N.Y.S.2d 650 [2007],lv. denied10 N.Y.3d 766, 854 N.Y.S.2d 328, 883 N.E.2d 1263 [2008] ). Thus, we modify the judgment by reversing defendant's convictions under counts 15, 16, 17, 18, 19, 20 and 21 for sexual abuse in the second degree, and those counts of the indictment must be dismissed ( see People v. Grier, 37 N.Y.2d 847, 848, 378 N.Y.S.2d 37, 340 N.E.2d 471 [1975] ).

Next, defendant argues that all counts charging sexual abuse in the first degree (counts 1–4) and sexual abuse in the second degree (15–26) ⁴ should have been dismissed as duplicitous on the ground that while they were facially valid, the victim testifiedat trial to multiple instances of sexual contact during each charged period ( seeCPL 200.30 [1] [each count “may charge one offense only”]; People v. Black, 65 A.D.3d 811, 813, 884 N.Y.S.2d 292 [2009],lv. denied13 N.Y.3d 905, 895 N.Y.S.2d 319, 922 N.E.2d 908 [2009] ). This claim is unpreserved for our review, as defendant did not specifically raise it by appropriate objection either in his pretrial motion to dismiss the indictment ⁵ or at trial ⁶ ( SEEcpl 470.05), AND PRESERVATION RULes apply to duplicity claims ( see People v. Becoats, 17 N.Y.3d 643, 650–651, 934 N.Y.S.2d 737, 958 N.E.2d 865 [2011],cert. denied––– U.S. ––––, 132 S.Ct. 1970, 182 L.Ed.2d 822 [2012] ). We decline to take corrective action in the interest of justice ( seeCPL 470.15[3][c] ) given that the indictment as a whole (implicitly) and the bill of particulars (expressly) reflect that the victim alleged two or more instances of sexual contact ⁷ for the time periods covered in each count of sexual abuse in the first and second degrees ( see People v. Wright, 22 A.D.3d 873, 875, 802 N.Y.S.2d 545 [2005],lv. denied6 N.Y.3d 755, 761, 810 N.Y.S.2d 423, 429, 843 N.E.2d 1163, 1169 [2005];see also People v. Van Ness, 43 A.D.3d 553, 554, 840 N.Y.S.2d 250 [2007],lv. denied9 N.Y.3d 965, 848 N.Y.S.2d 34, 878 N.E.2d 618 [2007] ). The defense, having unsuccessfully raised other duplicity claims prior to trial, nonetheless proceeded to trial without objection ( see People v. Becoats, 17 N.Y.3d at 651, 934 N.Y.S.2d 737, 958 N.E.2d 865). Had a timely objection on this specific ground been raised, the People would have had an opportunity, prior to or during trial, to amend the indictment or bill of particulars ( seeCPL 200.70[1]; 200.95[8]; 210.20[3] [a defendant must raise all possible grounds challenging an indictment in his or her pretrial motion]; 255.20).

The balance of defendant's convictions ⁸ were supported by legally sufficient evidence and were not against the weight of credible evidence ( see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1985] ). Defendant's challenge to the legal sufficiency of the evidence focuses on the proof that his sexual contact with the victim's “sexual or other intimate parts” was “for the purpose of gratifying sexual desire of either party” ( Penal Law § 130.00[3] ), an element of course of sexual conduct against a child in the second degree (count 8), as well as sexual abuse in the first degree (counts 1–4), sexual abuse in the second degree (counts 22–26) and sexual abuse in the third degree (counts 27–30). The victim testified that initially, during the first two specified seasons, defendant touched her breasts and vaginal area with his hands over her clothes and, thereafter, he touched her under her clothes; this occurred in her mother's or her own bed or in the bathroom, usually when no one else was at home and occasionally when another family member was asleep in another room. Her testimony regarding defendant's disturbing statements to her during sexual contact when she told him to stop (he refused) strongly supports the inference that it was for the purpose of defendant's sexual gratification ( see People v. Watson, 281 A.D.2d 691, 697–698, 721 N.Y.S.2d 700 [2001],lv. denied96 N.Y.2d 925, 732 N.Y.S.2d 643, 758 N.E.2d 669 [2001] ). When confronted by investigators, defendant admitted that the victim's allegations may be “all true,” that he may have had inadvertent contact with the victim's breasts and vagina while laying down with her while hugging her or rubbing her shoulders, thighs and neck; he claimed that it was done in a nonsexual way but he “[did not] remember everything” and may have “blacked out” and he did not think she was lying. Given the foregoing, defendant's sexual gratification motive can be readily inferred from his conduct in subjecting the young victim to repeated unwanted touching of her intimate parts ( see People v. King, 79 A.D.3d 1277, 1279, 912 N.Y.S.2d 329 [2010],lv. denied16 N.Y.3d 860, 923 N.Y.S.2d 422, 947 N.E.2d 1201 [2011];People v. Weber, 40 A.D.3d 1267, 1268, 836 N.Y.S.2d 327 [2007],lv. denied9 N.Y.3d 927, 844 N.Y.S.2d 182, 875 N.E.2d 901 [2007];People v. Watson, 281 A.D.2d at 697–698, 721 N.Y.S.2d 700). Viewing the evidence in the light most favorable to the People ( see People v. Cabey, 85 N.Y.2d 417, 420, 626 N.Y.S.2d 20, 649 N.E.2d 1164 [1995] ) and giving them the benefit of every favorable inference ( see People v. Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672), we find the evidence to be legally sufficient to support all of the convictions.

With regard to defendant's challenge to the weight of the evidence, which relies on his testimony denying the allegations of sexual contact and disavowing...