People v. Hobot

• Decision Date: 10 January 1994
• Citation: 606 N.Y.S.2d 277,200 A.D.2d 586
• Parties: The PEOPLE, etc., Respondent, v. Wilfredo HOBOT, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 277

606 N.Y.S.2d 277

200 A.D.2d 586

The PEOPLE, etc., Respondent, v. Wilfredo HOBOT, Appellant.

Supreme Court, Appellate Division Second Department.

Jan. 10, 1994.

Leighton M. Jackson, Brooklyn, for appellant.

Charles J. Hynes, Dist. Atty., Brooklyn (Roseann B. MacKechnie, Jodi L. Mandel and Ruth E. Ross, of counsel), for respondent.

Before MANGANO, P.J., and SULLIVAN, ROSENBLATT, LAWRENCE and O'BRIEN, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant (1) from a judgment of the Supreme Court, Kings County (Marrus, J.), rendered January 29, 1990, convicting him of rape in the first degree (two counts) and sexual abuse in the first degree, upon a jury verdict, and imposing sentence, and (2) by permission, from an order of the same court, dated August 10, 1992, which, after a hearing, denied his motion pursuant to CPL 440.10 to vacate the judgment of conviction.

ORDERED that the judgment and the order are affirmed.

The defendant contends, inter alia, that the jury's verdict was against the weight of the evidence and that he was denied the effective assistance of counsel at the trial.

The defendant was convicted, after a jury trial, of two counts of rape in the first degree and one count of sexual abuse in the first degree in connection with separate incidents involving encounters between him and the then nine-year-old complainant, the daughter of a woman with whom the defendant was cohabiting. The complainant, who was 11 years old at the time of the trial, testified that on January 7, 1987, she was asleep in her room when, sometime after 9:00 P.M., she was awakened by the defendant, who escorted her to the living room couch. The defendant got on top of her, touched her breast underneath her clothing, and stated that he would shoot her if she told anyone. After pulling down the child's panties, he touched the inside of her vagina with his fingers and his penis. The defendant put his penis inside her vagina and moved up and down. He subsequently fell asleep and the complainant returned to her room. She did not tell anyone about the incident at that time because she feared that the defendant would shoot her and her mother.

The complainant further testified that on May 10, 1987, she attended a Mother's Day party with the defendant and his family. The defendant got drunk at the party and they returned home late. The defendant subsequently woke the complainant and instructed her to go into her mother's bedroom and lie down. The defendant touched her chest, poured beer on his penis and her vagina, and got on top of her and put his penis inside her vagina. The complainant did not tell anyone about the episode because the defendant repeated his threat that he would shoot her if she did so.

Finally, the complainant testified that after midnight on December 11, 1987, the defendant again woke her and took her into the living room. The defendant touched her chest through her clothing, but the complainant repeatedly coughed in an effort to wake her mother, who was home that night. The complainant's mother entered the room and turned on the light. The defendant "moved real fast", and told the mother that the complainant had been coughing. The mother then took the complainant into the bathroom and asked her what had happened. The complainant told her, but the mother advised her not to worry about it because they would be moving soon. On or about December 17, 1987, the complainant stayed at her aunt's house. After the complainant took a shower, her aunt noticed bruises on her body and asked her about them. The complainant explained that her mother had hit her, and she then told her aunt about the foregoing incidents. The complainant was subsequently taken to a police station and to a hospital for a physical examination.

During cross-examination by the defendant's trial counsel, the complainant stated that she did not know if the defendant had put his penis all the way into her vagina, and she admitted that she did not experience any bleeding following the incident. Her recollection of the dates and of the specific acts committed by the defendant were also challenged on cross-examination.

The prosecution also presented the testimony of Dr. Ardres Jean-Pierre, a physician specializing in the field of obstetrics and gynecology who had been licensed to practice medicine in New York since 1977. Dr. Jean-Pierre stated that he attended annual post-graduate courses of the American College of Obstetrics and Gynecology, one of which dealt with child and adult victims of sexual abuse. He estimated that he had examined 60 to 100 sexual abuse patients since 1979, more than 20 of whom were children. Dr. Jean-Pierre had also testified as an expert in the field of gynecology in more than five previous court proceedings, and he was qualified as an expert in gynecology by the trial court. He testified that on December 21, 1987, he was working at Woodhull Hospital in Brooklyn. At 11:00 P.M., he was called in as a consultant with regard to an examination of the complainant. The child had already undergone a pelvic examination by the attending pediatrician, Dr. Rodriguez, in the emergency room. Dr. Rodriguez had observed a rash in the complainant's vulva area and two tears in her hymen. The tears were located at the two o'clock and five o'clock positions. Dr. Jean-Pierre then performed his own pelvic examination of the child and found redness and irritation of the vulva area as well as two "slight" tears in the hymen which he estimated were each one millimeter in size. He attributed the tears to "previous penetration" by some object, possibly an adult male's penis, and stated that the presence of the tears meant that the hymen was no longer "intact". Since there was no bleeding in the complainant's vagina, Dr. Jean-Pierre found that the tears had not been sustained very recently. However, he could not provide a specific length of time that they had been present, guessing that they could have existed for more than one month or more than one year. Similarly, he found that the child's vaginal rash could have been present for one month or several months. During cross-examination, the doctor admitted that if a penis had "fully entered" the complainant's vagina, her hymen would have been "broken".

The defendant's trial counsel presented testimony which attempted to attack the credibility of the complainant and to provide an alibi for the defendant. The first defense witness was Olga LaLlave, an employee of St. Christopher Foster Care Agency. On August 24, 1989, Ms. LaLlave was present in Family Court and noticed the complainant there with her brothers and sisters. Ms. LaLlave struck up a conversation with the child and asked her whether she had been sexually abused. The complainant lowered her head and made no eye contact with Ms. LaLlave. She then described a single incident of sexual abuse in which the defendant had touched her body with his hands while she was on the couch. The defendant then got on top of her, but when her mother walked into the room he got off her very quickly and stated to the mother that the complainant was ill. Ms. LaLlave did not know the date of this incident, nor did she ask the complainant about any specific dates. However, she did ask if the defendant had touched her with any other part of his body, and the child responded in the negative. Additionally, the complainant indicated that she had been abused on more than one occasion. The conversation between Ms. LaLlave and the child immediately ceased when the complainant's mother entered the courtroom.

Alibi testimony was elicited from the complainant's mother, the defendant's brother, and the defendant himself. The complainant's mother was also the mother of four children by the defendant and had married him in January 1989. On January 6, 1987, she went to Woodhull Hospital because she was in labor, and returned home three days later. According to the complainant's mother, during that time, the complainant stayed at her grandmother's house, but she came home on January 10.

The complainant's mother further testified that on May 10, 1987, she and most of her family, including the complainant, went to Connecticut. The defendant did not accompany them because he and the complainant's mother had argued that morning. The complainant's mother and the children did not return until 11:00 P.M. or midnight, and she again had an argument with the defendant, who left the house and did not return until 8:00 A.M. on the following morning. However, she admitted that she had been asleep from 2:00 or 3:00 A.M. until 8:00 A.M., and that the defendant had a key to the residence. She further admitted that she wished to reunite her family with the defendant.

The defendant's brother claimed that he stayed overnight at his brother's residence on three nights in January 1987 while the complainant's mother was in the hospital. The defendant left the residence on each of these nights at approximately 9:30 P.M. to go to work. The brother further claimed that he never saw the complainant during that period because she was staying at her grandmother's house. He admitted that he did not want to see his brother go to jail.

The defendant denied raping or sexually abusing the complainant on any occasion. He stated that on January 7, 1987, the complainant was picked up by her grandmother in the afternoon and stayed at her grandmother's residence until her mother returned from the hospital a few days later. The defendant went to work as a doorman each night and did not return until the following morning. His brother stayed over at the residence on each of the nights. On the morning of May 10, 1987, the defendant and the complainant's mother argued. The mother then left with the complainant and some of the other children for Connecticut. The mother did not return until approximately 11:00 P.M. that night, at which time she and the defendant again argued and the defendant left...