People v. Lominy

• Court: New York Supreme Court — Appellate Division
• Citation: People v. Lominy, 176 A.D.3d 741, 107 N.Y.S.3d 712(Mem) (N.Y. App. Div. 2019)
• Decision Date: 02 October 2019
• Docket Number: 2016–13298,Ind. 246/16
• Parties: The PEOPLE, etc., Respondent, v. Ellijah LOMINY, Appellant.

176 A.D.3d 741

107 N.Y.S.3d 712 (Mem)

The PEOPLE, etc., Respondent,

v.Ellijah LOMINY, Appellant.

2016–13298

Ind. 246/16

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

Submitted - May 2, 2019

October 2, 2019

Paula Schwartz Frome, Garden City, NY, for appellant.

Madeline Singas, District Attorney, Mineola, N.Y. (Jason R. Richards and Brian Witthuhn of counsel), for respondent.

MARK C. DILLON, J.P., CHERYL E. CHAMBERS, COLLEEN D. DUFFY, BETSY BARROS, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Robert A. McDonald, J.), rendered December 1, 2016, convicting him of course of sexual conduct against a child in the second degree, sexual abuse in the first degree (three counts), and endangering the welfare of a child, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The complainant testified at trial that, when she was eleven years old and in sixth grade, the defendant, her older brother, inappropriately touched her with his hands and rubbed himself against her. The complainant described three specific instances in detail and noted that there were two additional incidents as well. After a jury trial, the defendant was convicted of course of sexual conduct against a child in the second degree, sexual abuse in the first degree (three counts), and endangering the welfare of a child. The defendant appeals.

Contrary to the defendant's contention, the Supreme Court providently exercised its discretion in precluding the defendant from cross-examining the complainant about alleged prior allegations of physical and sexual abuse. The defendant did not provide a "basis for believing that the prior unrelated claims were false" ( People v. Passenger, 175 A.D.2d 944, 946, 572 N.Y.S.2d 972 ; see People v. Mandel, 48 N.Y.2d 952, 953–954, 425 N.Y.S.2d 63, 401 N.E.2d 185 ; People v. Resto, 104 A.D.3d 709, 709, 960 N.Y.S.2d 203 ; People v. Benn, 213 A.D.2d 489, 489, 623 N.Y.S.2d 634 ), nor did he "provide a sufficient factual basis ‘to suggest a pattern casting substantial doubt on the validity of the [subject] charges’ " ( People v. Weberman, 134 A.D.3d 862, 863, 22 N.Y.S.3d 97, quoting People v. Mandel, 48 N.Y.2d at 953, 425 N.Y.S.2d 63, 401 N.E.2d 185 ).

Furthermore, the Supreme Court providently exercised its discretion in allowing the complainant to testify about the two additional instances of abuse beyond the three specific charged incidents. The defendant was charged with course of sexual conduct against a child in the second degree, so the additional instances of abuse testified to by the complainant were offered to prove an element of the crime charged, namely, that there were two or more acts of sexual conduct over a period of time not less than three months in duration (see Penal Law § 130.80 ). "The text and legislative history of Penal Law § 130.80 ... make clear that it is a continuing crime to which the usual requirements of specificity with respect to time do not pertain" ( People v. Colf, 286 A.D.2d 888, 888–889, 730 N.Y.S.2d 749 ; see People v. Harp, 20 A.D.3d 672, 673, 798 N.Y.S.2d 235 ; People v. Green, 17 A.D.3d 1076, 1077, 793 N.Y.S.2d 790 ).

The defendant's contention that certain of the prosecutor's summation remarks deprived him of a fair trial is unpreserved for appellate review (see People v. Marcus, 112 A.D.3d 652,...