People v. Hemingway

• Decision Date: 09 June 2011
• Citation: 925 N.Y.S.2d 677,85 A.D.3d 1299,2011 N.Y. Slip Op. 04773
• Parties: The PEOPLE of the State of New York, Respondent,v.Geoffrey M. HEMINGWAY, Appellant.
• Court: New York Supreme Court — Appellate Division

85 A.D.3d 1299
925 N.Y.S.2d 677
2011 N.Y. Slip Op. 04773

The PEOPLE of the State of New York, Respondent,
v.
Geoffrey M. HEMINGWAY, Appellant.

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

June 9, 2011.

[925 N.Y.S.2d 678]

Lucas G. Mihuta, Albany, for appellant.Andrew J. Wylie, District Attorney, Plattsburgh (Jaime A. Douthat of counsel), for respondent.Before: MERCURE, J.P., ROSE, LAHTINEN, KAVANAGH and McCARTHY, JJ.KAVANAGH, J.

[85 A.D.3d 1300] Appeal from a judgment of the County Court of Clinton County (McGill, J.), rendered January 27, 2009, upon a verdict convicting defendant of the crimes of sexual abuse in the first degree (three counts) and endangering the welfare of a child.

In May 2008, defendant was charged by indictment with sexual abuse in the first degree (six counts) and endangering the welfare of a child (one count), stemming from allegations that he sexually assaulted

[925 N.Y.S.2d 679]

the victim (born in 1995), who lived next door to him in a trailer park. After a jury trial, a verdict was rendered convicting defendant of sexual abuse in the first degree (three counts) and endangering the welfare of a child, and acquitting him of the remaining charges. He was subsequently sentenced to aggregate terms of imprisonment totaling 12 years, plus 10 years of postrelease supervision. Defendant now appeals.

Defendant initially claims that his convictions for sexual abuse in the first degree are not supported by the weight of the credible evidence because the victim's testimony, in addition to being uncorroborated, is materially inconsistent with prior statements she made regarding these incidents and had been called into question by testimony given by other witnesses who appeared on behalf of defendant at trial. In essence, the victim claimed that on numerous occasions during a 28–month period that began in June 2005, defendant subjected her to illicit sexual contact. The jury's verdict contains two convictions based on the victim's testimony that defendant, on two separate occasions, used force to subject her to sexual contact ( see Penal Law § 130.65[1] ), while the third is based on her claim that defendant subjected her to sexual contact when she was less than 11 years old ( see Penal Law § 130.65[3] ).

Contrary to defendant's claim, the victim's testimony regarding his contact with her was corroborated by other evidence admitted at trial. In that regard, we refer to testimony given by the victim's father and defendant's sister-in-law, both of whom described the victim as being visibly upset at a time when she claimed that defendant had sexually assaulted her, and recounted how, upon inquiry, the victim, albeit reluctantly, told them what defendant had allegedly done to her. The father's testimony is particularly compelling in terms of establishing the [85 A.D.3d 1301] intimate nature of defendant's relationship with his daughter.¹ In it, he testified to going to defendant's trailer and, upon entering, seeing defendant suddenly exit from the bedroom and make “a mad dash to get to the bathroom.” The father said that, moments later, the victim came out of defendant's bedroom with “her hair all messed up.” When viewed in connection with this evidence, the victim's testimony was not “so incredible as to be unworthy of belief” ( People v. Reynolds, 81 A.D.3d 1166, 1167, 917 N.Y.S.2d 401 [2011] ) and provided ample support for the jury's verdict as it relates to three of the four charges for which defendant now stands convicted ( see People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007]; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987]; People v. Reynolds, 81 A.D.3d at 1167, 917 N.Y.S.2d 401; People v. King, 79 A.D.3d 1277, 1278, 912 N.Y.S.2d 329 [2010]; People v. Battease, 74 A.D.3d 1571, 1575, 904 N.Y.S.2d 241 [2010], lv. denied 15 N.Y.3d 849, 909 N.Y.S.2d 26, 935 N.E.2d 818 [2010] ).

However, we agree with defendant that even if the jury fully embraced the victim's testimony, it did not provide a legally sufficient basis for concluding that defendant used force to have sexual contact with her as alleged in count 6 of the indictment, and defendant's conviction for that charge must be reversed ( see Penal Law § 130.65[1] ).² As to that charge, the...