People v. Izzo

• Court: New York Supreme Court Appellate Division
• Citation: 104 A.D.3d 964,961 N.Y.S.2d 333,2013 N.Y. Slip Op. 01438
• Parties: The PEOPLE of The State of New York, Respondent, v. William R. IZZO III, Appellant.
• Decision Date: 07 March 2013

104 A.D.3d 964
961 N.Y.S.2d 333
2013 N.Y. Slip Op. 01438

The PEOPLE of The State of New York, Respondent,
v.
William R. IZZO III, Appellant.

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

March 7, 2013.

[961 N.Y.S.2d 334]

Marcy I. Flores, Warrensburg, for appellant.

Derek P. Champagne, District Attorney, Malone (Glenn MacNeill of counsel), for respondent.

Before: MERCURE, J.P., STEIN, SPAIN and McCARTHY, JJ.

SPAIN, J.

[104 A.D.3d 965]Appeal from a judgment of the County Court of Franklin County (Main Jr., J.), rendered March 28, 2011, upon a verdict convicting defendant of the crimes of criminal sexual act in the first degree, sexual abuse in the first degree and endangering the welfare of a child.

Defendant, a former friend of the victim's father, lived with the victim (born in 2001) and her family in their home in the Village of Malone, Franklin County for approximately a month in early 2007. During this time, defendant occasionally babysit the victim and her four siblings. Several years later, in the spring of 2010, the victim disclosed that, while living with her family, defendant entered her bedroom

[961 N.Y.S.2d 335]

where she shared a bed with her sister and made contact with her genitals using his mouth, hands and penis. Defendant was convicted, after a jury trial, of criminal sexual act in the first degree, endangering the welfare of a child and sexual abuse in the first degree and sentenced to concurrent prison terms of 25 years followed by five years of postrelease supervision for criminal sexual act in the first degree, one year for endangering the welfare of a child and seven years with three years of postrelease supervision for sexual abuse in the first degree. On defendant's appeal, we affirm.

First, we address defendant's claim that a particular juror should have not have been excused for cause, over defense counsel's objection, for having “a state of mind that is likely to preclude him [or her] from rendering an impartial verdict based upon the evidence adduced at the trial” (CPL 270.20 [1][b] ). During voir dire, the juror at issue answered affirmatively when asked whether he might have a problem deciding a case based upon the testimony of a single child witness. Thereafter, when asked again, along with several other jurors, whether, if the case “comes down to primarily the testimony of one single child they still don't think they could convict just on that,” the subject juror responded, “I don't know.”

Generally, “when potential jurors reveal knowledge or opinions reflecting a state of mind likely to preclude impartial service, they must in some form give unequivocal assurance [104 A.D.3d 966]that they can ... render an impartial verdict based on the evidence,” or else the trial judge should excuse such juror ( People v. Johnson, 94 N.Y.2d 600, 614–616, 709 N.Y.S.2d 134, 730 N.E.2d 932 [2000] ). “[A] ‘trial court should lean toward disqualifying a prospective juror of dubious impartiality, rather than testing the bounds of discretion’ ” ( People v. Scott, 16 N.Y.3d 589, 595, 925 N.Y.S.2d 384, 949 N.E.2d 475 [2011], quoting People v. Branch, 46 N.Y.2d 645, 651, 415 N.Y.S.2d 985, 389 N.E.2d 467 [1979] ), because “even where the court errs on the side of caution, ‘the worst the court will have done ... is to have replaced one impartial juror with another impartial juror’ ” ( People v. Burdo, 256 A.D.2d 737, 742, 682 N.Y.S.2d 681 [1998], quoting People v. Culhane, 33 N.Y.2d 90, 108 n. 3, 350 N.Y.S.2d 381, 305 N.E.2d 469 [1973] ). Here, the juror's uncertain responses as to whether he could convict on the basis of only one child witness clearly justified County Court's decision to excuse him for cause.

Defendant also argues that the verdict was not supported by legally sufficient evidence ¹ and was against the weight of the evidence. Given that, in our view, a different verdict would not have been unreasonable, we must “weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony,” while giving great deference to the jury's credibility determinations ( People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] [internal quotation marks and citation omitted] ). Here, “defendant does not dispute that evidence of the elements of the crimes charged was presented through the trial testimony of

[961 N.Y.S.2d 336]

the victim” ( People v. Smith, 272 A.D.2d 713, 715, 710 N.Y.S.2d 648 [2000],lv. denied95 N.Y.2d 871, 715 N.Y.S.2d 226, 738 N.E.2d 374 [2000] ), but instead argues that the victim's testimony required corroboration and, in any event, was incredible. Contrary to defendant's contention on appeal, the then nine-year-old victim was competent to testify under oath and such testimony did not require corroboration. Indeed, only when a witness is less than nine years old and is not qualified by the court to understand the nature of an oath is the ensuing unsworn testimony deemed insufficient to sustain a conviction absent corroboration ( seeCPL 60.20[2], [3]; People v. Artis, 90 A.D.3d 1240, 1240, 934 N.Y.S.2d 614 [2011],lv. denied18 N.Y.3d 955, 944 N.Y.S.2d 483, 967 N.E.2d 708 [2012] ).

Further, our review of the trial transcript persuades us that the jury was justified in crediting the victim's testimony and the verdict was not against the weight of the evidence. In arguing that the victim's testimony was unworthy of belief, defendant[104 A.D.3d 967]relies on minor inconsistencies between the victim's testimony, her...