People v. Hudy

• Decision Date: 25 November 1987
• Citation: 521 N.Y.S.2d 811,132 A.D.2d 134
• Parties: , 43 Ed. Law Rep. 339 The PEOPLE of the State of New York, Respondent, v. Patrick HUDY, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 811

521 N.Y.S.2d 811

132 A.D.2d 134, 43 Ed. Law Rep. 339

The PEOPLE of the State of New York, Respondent, v. Patrick HUDY, Appellant.

Supreme Court, Appellate Division Third Department.

Nov. 25, 1987.

Aswad & Ingraham (Thomas A. Saitta, of counsel), Binghamton, for appellant.

Patrick T. Mathews, Dist. Atty. (Kevin P. Dooley, of counsel), Binghamton, for respondent.

Before KANE, J.P., and MAIN, MIKOLL, LEVINE and HARVEY, JJ.

KANE, Justice Presiding.

During the relevant time period, defendant was a corrective math teacher at Glenwood Elementary School (hereinafter Glenwood) in the Town of Vestal, Broome County, where he had been teaching since 1976. Students who, as the result of testing, were determined to be in need of extra help were placed in defendant's class. These students attended defendant's class three times a week for a 30-minute session.

After an investigation concerning allegations of sexual abuse upon his male students, defendant was indicted and charged with 23 counts of sexual abuse in the first degree and nine counts of endangering the welfare of a child. After pretrial motions, County Court granted defendant's motion to dismiss some of the counts. Defendant was thereafter tried on the remaining 25 counts: 16 counts of sexual abuse in the first degree and nine counts of endangering the welfare of a child, involving alleged incidents with eight boys. These boys, between the ages of 10 and 12 by the time of trial, all testified that defendant had touched their private parts on one or more occasions in defendant's classroom. This touching generally occurred during class when each boy was at defendant's desk while defendant was in the process of correcting that particular child's math assignments. One of the children testified that he saw defendant on one occasion with his hand down the front of the pants of another student, who was at defendant's desk having an assignment corrected. The eight boys who testified as to being touched all stated that they did not promptly report defendant's conduct because they were either scared, embarrassed or unsure of what to do.

At the trial, the People also were permitted to present a child (hereinafter the witness) who testified that defendant had touched him in an improper manner after detaining him after school on about six occasions during the 1983-1984 school year. After the sixth time, the witness reported the touching or "tickling" to his grandmother who, in turn, told his mother. The witness's mother then wrote defendant a letter requesting him to stop touching her son, and she sent a copy of the letter to Glenwood's school psychologist. The witness later moved from Vestal to Pennsylvania in 1984. The acts underlying his testimony were not contained in any of the charges in the indictment against defendant.

The defense called 12 witnesses to the stand. These included character witnesses who testified as to defendant's reputation as having a good moral character; witnesses who testified to the fact that they had never seen defendant engage in the charged conduct; and a police officer whose testimony was offered to impeach the testimony of one of the alleged victims. In addition, defendant took the stand and denied the charges against him. The jury returned a verdict of guilty on all of the charged counts and, after sentencing, this appeal ensued.

Defendant contends that County Court committed reversible error in refusing to permit the defense to examine the investigating officers on their method of questioning the alleged victims. During the trial, defendant sought to call two investigating officers of the Vestal Police to the stand to question them about the method they had used in interviewing defendant's students. In his offer of proof, defense counsel stated that the testimony would be limited to asking the officers if they made certain statements to the children before the children made their allegations. In this regard, defendant was attempting to establish that the police suggested or coerced the accusation against defendant. Accordingly, the defense argued that the evidence was relevant to the credibility of the witnesses and should have been considered by the jury. County Court refused to allow the defense to call and question the officers as to the method in which the children were questioned, finding that the evidence concerned a collateral issue.

In the circumstances of this case, we find no error in County Court's ruling (see, Richardson, Evidence § 491, at 477-478 [Prince 10th ed] ). In any event, the defense was able to adduce most of the evidence it sought through cross-examination of the children and County Court permitted defense counsel to question Officer Terry Kintner on the specific subject of his questioning of one of the victims (see, Di Paolo v. Somma, 111 A.D.2d 899, 490 N.Y.S.2d 803).

As noted above, County Court permitted the prosecution to call the witness, who testified that defendant touched him in an improper manner on about six occasions during the 1983-1984 school year. Since this conduct had not formed the basis of any of the charges contained in the indictment against him, defendant contends that County Court improperly admitted testimony of the witness concerning an uncharged crime (see, People v. Crandall, 67 N.Y.2d 111, 500 N.Y.S.2d 635, 491 N.E.2d 1092). In our opinion, the evidence was properly admitted to rebut the defense's theory that the allegations from the children at Glenwood were the result of a rumor that had snowballed. Since the witness had previously reported an incident, lived outside the area for two years, had had no contact with the students at Glenwood and was not present in October 1984 when the alleged rumor spread, such evidence was relevant to rebut defendant's claim that the charges against him were fabricated by the children at Glenwood. In our opinion, the probative value of this testimony outweighed any prejudice and consequently County Court properly admitted the evidence (see, People v. Putnam, 130 A.D.2d 52, 55, 518 N.Y.S.2d 239).

Defendant next contends that the prosecution failed to establish a prima facie case on certain counts because no evidence to corroborate the victims' testimony existed and the retroactive application of the repeal of the pertinent corroboration requirement contained in Penal Law former § 130.16 (L.1984, ch. 89, § 1; see, Donnino, Supplementary Practice Commentary, McKinney's Cons.Laws of N.Y., Book 39, Penal Law § 130.16 [1987 supp.], at 521-522) violated the ex post facto clause of U.S. Constitution, article I, § 10. We reject this contention. As noted in People v. Spearman, 128 Misc.2d 112, 487 N.Y.S.2d 712, the amendment to Penal Law § 130.16, removing the corroboration requirement, was not an ex post facto law since it did not punish as a crime an act which was not a crime when committed, increase the punishment for a crime after its commission or deprive defendant of any defense available accorded him at the time the act was committed. Moreover, no element of the crimes involved have been altered and each element of the crimes must still be proven beyond a reasonable doubt (see, Adler, Ex Post Facto Changes in Evidentiary Law: Repeal of Accomplice Corroboration Requirements, 55 Ford L.Rev. 1191 [1987] ).

Defendant argues that County Court erred by permitting the jurors to view photographs of the victims to aid them in their deliberations. In this regard, during the trial, the prosecution offered into evidence photographs of each of the children who testified to facilitate the jury's deliberations. Over defendant's objection, County Court received the photographs for the limited purpose of helping the jury to distinguish the boys from one another. Defendant contends that these photographs should not have been admitted because they were irrelevant to any issue and were highly prejudicial to him because they allegedly aroused the emotions of the jury. We, however, find no error. The photographs cannot be considered prejudicial to defendant as the photographs in question were of the children in ordinary attire and poses (see, People v. Pobliner, 32 N.Y.2d 356, 369-370, 345 N.Y.S.2d 482, 298 N.E.2d 637, cert. denied 416 U.S. 905, 94 S.Ct. 1609, 40 L.Ed.2d 110). Further, County Court did not err by realistically addressing the fact that the jury could become confused about the identities of the witnesses, given that many boys of approximately the same age testified. Accordingly, the pictures were properly received for the limited purpose of elucidating the testimony of the numerous victims by refreshing the jury as to the identity of each.

We have examined defendant's remaining contentions and find them lacking in merit. The judgment should therefore be affirmed.

Judgment Affirmed.

Opinion by KANE, J.P., in which MAIN and HARVEY, JJ., concur; MIKOLL and LEVINE, JJ., concur in part and dissent in part.

LEVINE, Justice (dissenting in part and concurring in part).

In my view, the convictions on counts No. 8, 9, 12, 14, 15, 17, 21, 22, 25, 26 and 28 for sexual abuse in the first degree, and counts No. 4, 11, 13, 16, 20 and 31, for endangering the welfare of a child in the first degree, should be reversed and those counts dismissed, as violative of the prohibition against ex post facto laws (U.S. Const. art. I, § 10, cl. 1; see also, U.S. Const. art. I, § 9, cl. 3). As to each such count, the crime was committed before the effective date of the amendment to Penal Law § 130.16, which eliminated the corroboration requirement for the testimony of a victim of a sex offense for which lack of consent is due to the victim's young age (L.1984, ch. 89). Despite the strong arguments made to the contrary by the majority here and in People v. Spearman, 128 Misc.2d 112, 487 N.Y.S.2d 712, as well as the scholarly criticism of general application of the ex post facto prohibition to changes in the law of criminal evidence (see, Tribe, American...