People v. Hughes

• Decision Date: 01 April 2010
• Citation: 72 A.D.3d 1121,897 N.Y.S.2d 315
• Parties: The PEOPLE of the State of New York, Respondent, v. Glennan HUGHES, Appellant.
• Court: New York Supreme Court — Appellate Division

897 N.Y.S.2d 315

72 A.D.3d 1121

The PEOPLE of the State of New York, Respondent,

v.Glennan HUGHES, Appellant.

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

April 1, 2010.

Jack H. Weiner, Chatham, for appellant.

Kathleen B. Hogan, District Attorney, Lake George (Kevin P. Donlon of counsel), for respondent.

Before: PETERS, J.P., SPAIN, LAHTINEN, STEIN and GARRY, JJ.

LAHTINEN, J.

Appeal from a judgment of the County Court of Warren County (Hall Jr., J.), rendered January 3, 2007, upon a verdict convicting defendant of the crimes of sexual abuse in the first degree (seven counts), endangering the welfare of a child (five counts) and forcible touching.

A foster child residing with defendant and his wife was allegedly subjected to sexual contact by defendant on March 31, 2002, including placing his fingers in hervagina and anus on two separate occasions that evening. The child (hereinafter the younger victim), who was five years old at the time, did not tell anyone until after she had been adopted and was living in another state in 2005. During the ensuing investigation of the incident, another girl, who was a relative of defendant and had spent time at defendant's home in the summers of 1996 and 1997, reported that, during such summers, defendant had placed his fingers in her vagina and rubbed his erected penis against her buttocks. This child (hereinafter the older victim) was 10 and 11 years old at the time of the alleged acts. Defendant wascharged in a 13-count indictment with seven counts of sexual abuse in the first degree, five counts of endangering the welfare of a child and one count of forcible touching. He was convicted of all counts following a jury trial and sentenced to an aggregate prison term of 18 years with three years of postrelease supervision. Defendant appeals.

A series of errors, the cumulative effect of which cannot be characterized as harmless, requires reversal. First, we note that five of the counts against defendant were time-barred. Although defendant failed to preserve the issue, we exercise our interest of justice jurisdiction regarding this issue. ¹ Defendant was convicted of two counts of endangering the welfare of a child regarding the younger victim (counts 3 and 8) and three counts of such crime as to the older victim (counts 10, 12 and 13). Endangering the welfare of a child is a class A misdemeanor ( see Penal Law § 260.10[1] ) and the statute of limitations as to such crime is two years ( see CPL 30.10[2][c]; People v. Scanlon, 52 A.D.3d 1035, 1037, 861 N.Y.S.2d 426 [2008], lv. denied 11 N.Y.3d 741, 864 N.Y.S.2d 399, 894 N.E.2d 663 [2008]; People v. Rogner, 265 A.D.2d 688, 688, 697 N.Y.S.2d 363 [1999] ). Unlike sexual offenses under Penal Law article 130, the limitations period pertaining to this misdemeanor is not tolled until the victim's 18th birthday ( see CPL 30.10[3] [f] ). Here, September 2005 is the earliest date asserted by the People as a date of commencement. This was over eight years after the last alleged act involving the older victim and about 3 1/2 years after the last alleged act involving the younger victim. The conviction of the counts of endangering the welfare of a child (counts 3, 8, 10, 12 and 13) must thus be reversed and those counts dismissed.

Review of the record further reveals that the evidence at trial did not support the conviction of sexual abuse in the first degree under count 11. ² That count alleged that defendant, in the summer of 1997, subjected the older victim to sexual conduct when she was less than 11 years old ( see Penal Law § 130.65[3] ). The uncontradicted proof at trial, including the older victim's own testimony, established that she was born in April 1986 and, by the summer of 1997, she was, in fact, 11 years old. While the testimony regarding defendant's touching of her in the summer of 1997, together with her age, would support a conviction ofthe lesser included crime of sexual abuse in the second degree ( see Penal Law § 130.60[2] ), the convictionof sexual abuse in the first degree was improper since she was not less than 11 years old in the summer of 1997. The conviction on this count must be reversed, with leave to re-present an appropriate charge to a new grand jury.

During trial and over defendant's objection, the People attempted to impeach the testimony of defendant's wife by using a letter she had written to her relatives, who were also family of the older victim. While we are unpersuaded that County Court abused its discretion in permitting such questioning ( see People v. Duncan, 46 N.Y.2d 74, 80, 412 N.Y.S.2d 833, 385 N.E.2d 572 [1978] ), a cautionary instruction advising the jury that this proof could be considered only for impeachment purposes was not given. Moreover, during summation, the prosecutor quoted the letter while urging the jury to consider it as direct evidence of defendant's guilt. We recently held on similar facts...