People v. Madsen

• Decision Date: 03 January 2019
• Docket Number: 108684
• Citation: 90 N.Y.S.3d 396,168 A.D.3d 1134
• Parties: The PEOPLE of the State of New York, Respondent, v. Robert A. MADSEN, Appellant.
• Court: New York Supreme Court — Appellate Division

168 A.D.3d 1134
90 N.Y.S.3d 396

The PEOPLE of the State of New York, Respondent,
v.
Robert A. MADSEN, Appellant.

108684

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

Calendar Date: October 16, 2018
Decided and Entered: January 3, 2019

90 N.Y.S.3d 398

Matthew C. Hug, Albany, for appellant.

Kelli P. McCoski, District Attorney, Fonda (Pamela A. Ladd of counsel), for respondent.

Before: Garry, P.J., Egan Jr., Clark, Mulvey and Rumsey, JJ.

MEMORANDUM AND ORDER

Garry, P.J.

168 A.D.3d 1134

Appeal from a judgment of the County Court of Montgomery County (Catena, J.), rendered April 7, 2015, upon a verdict convicting defendant of the crimes of predatory sexual assault against a child (two counts), criminal sexual act in the second degree (10 counts), criminal sexual act in the third degree (14 counts), sexual abuse in the second degree (two counts), sexual abuse in the third degree (three counts) and endangering the welfare of a child (six counts).

Defendant resided on a farm in the Town of St. Johnsville, Montgomery County that he purchased in 2003. In 2005, he sold some of his land to an Amish family with 15 children and, in the same year, he met another Amish family with nine children. Between 2006 and 2013, three boys from the first family and three boys from the second family worked periodically for defendant doing odd jobs around the farm. During that time, defendant subjected all six victims to sexual contact. In January 2014, one of the victims disclosed defendant's conduct towards him to a neighbor. The neighbor advised the State Police. An investigation ensued, during the course of which the other victims made further disclosures regarding defendant's conduct toward them.

Defendant was charged with multiple crimes. Following a jury trial, he was acquitted on three counts and convicted of predatory sexual assault against a child (two counts), criminal sexual act in the second degree (10 counts), criminal sexual act in the third degree (14 counts), sexual abuse in the second degree (two counts), sexual abuse in the third degree (three

168 A.D.3d 1135

counts) and endangering the welfare of a child (six counts). County Court sentenced defendant to consecutive prison terms on five counts – 20 years to life for one conviction of predatory sexual assault against a child (count 1), five years each for three convictions of criminal sexual act in the second degree (counts 15, 19 and 32) and three years for one conviction of criminal sexual act in the third degree (count 25) – along with other equal or lesser

90 N.Y.S.3d 399

concurrent terms on the remaining convictions and postrelease supervision. Defendant appeals.

Initially, defendant contends that his convictions were not supported by legally sufficient evidence and were against the weight of the evidence in that the victims' testimony was so vague and conclusory that it did not support a verdict based on anything but speculation. Defendant's legal sufficiency argument is unpreserved, as his trial motion for dismissal argued only that certain counts were duplicitous (see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] ; People v. Perillo, 144 A.D.3d 1399, 1400, 41 N.Y.S.3d 776 [2016], lvs denied 29 N.Y.3d 948, 951, 54 N.Y.S.3d 379, 382, 76 N.E.3d 1082, 1085 [2017] ).¹ "However, a weight of the evidence challenge, which bears no preservation requirement, also requires consideration of the adequacy of the evidence as to each element of the crimes" ( People v. Cruz, 131 A.D.3d 724, 725, 14 N.Y.S.3d 804 [2015], lv denied 26 N.Y.3d 1087, 23 N.Y.S.3d 644, 44 N.E.3d 942 [2015] ; accord People v. Perillo, 144 A.D.3d at 1400, 41 N.Y.S.3d 776 ; see generally People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ).

The People's witnesses included the six victims, State Police investigators, and family members of the victims and of defendant. The victims each testified that they had worked for defendant during one or more summers, and they identified the ages at which defendant had sexual contact with each of them, beginning at age 12 for victim 1 and at ages 13, 14 or 15 for the other victims. They described the manner by which defendant introduced them to sexual contact, such as by expressing interest in the construction of their clothing and asking to investigate the way their pants were fastened. Each victim testified about the forms of sexual contact that defendant then subjected them to, including contact with his hands on the

168 A.D.3d 1136

inside and outside of their pants and, for all but victim 6, oral sexual contact, and they described the frequency with which this conduct occurred. The victims also testified that defendant showed them pornographic magazines and videos. They described several locations on the farm where the various sexual acts occurred, including the farmhouse basement, a cabin and a camper stored in a barn. Two of defendant's family members testified as to statements made by defendant to them following his arrest that could reasonably have been interpreted as acknowledgements that the charges against him were true.

Defendant testified on his own behalf. He denied that he had sexual contact with any of the victims when they were underage. He acknowledged that he had done so on a consensual basis with some of the victims after they reached the age of consent, and he asserted that the victims had falsely claimed that sexual contact had occurred when they were underage because they feared repercussions in the Amish community for having engaged in this consensual conduct. On appeal, he argues that there were inconsistencies in

90 N.Y.S.3d 400

the victims' testimony and that the general similarity of their accounts suggests that they were jointly fabricated. These claims, however, were explored at trial and raised credibility issues to be resolved by the jury (see People v. St. Ives, 145 A.D.3d 1185, 1187, 43 N.Y.S.3d 187 [2016], lv denied 29 N.Y.3d 1036, 62 N.Y.S.3d 305, 84 N.E.3d 977 [2017] ; People v. Simonetta, 94 A.D.3d 1242, 1244, 942 N.Y.S.2d 270 [2012], lv denied 19 N.Y.3d 1029, 953 N.Y.S.2d 562, 978 N.E.2d 114 [2012] ). As for defendant's argument that the time periods specified in the indictment – in most cases, a season such as the summer of a given year – were too imprecise, nothing in the record suggests "that the People were aware of and disregarded a narrower time frame" or "that they failed to make diligent efforts to ascertain the most precise time period" and, considering all of the circumstances, we find that the specified time periods were not unreasonable ( People v. Garcia, 141 A.D.3d 861, 863–864, 34 N.Y.S.3d 766 [2016], lv denied 28 N.Y.3d 929, 40 N.Y.S.3d 358, 63 N.E.3d 78 [2016] ; see People v. Watt, 84 N.Y.2d 948, 951, 620 N.Y.S.2d 817, 644 N.E.2d 1373 [1994] ). Further, "as his defense was a categorical denial of any abuse or sexual contact" while the victims were underage, defendant was not deprived of the ability to prepare a defense by the absence of more specific time frames ( People v. Porlier, 55 A.D.3d 1059, 1060, 865 N.Y.S.2d 732 [2008] ; accord People v. Garcia, 141 A.D.3d at 864, 34 N.Y.S.3d 766 ).

Had the jury credited defendant's testimony rather than that of the victims, a different verdict would not have been unreasonable; thus, we "must, like the trier of fact below, weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from

168 A.D.3d 1137

the testimony" ( 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]; see People v. Desmond, 118 A.D.3d 1131, 1133, 988 N.Y.S.2d 703 [2014], lv denied 24 N.Y.3d 1002, 997 N.Y.S.2d 120, 21 N.E.3d 572 [2014] ). Upon that review, "[w]e accord great deference to the jury's opportunity to view the victims' testimony and assess their credibility, as well as their ability to recall the specific details and time frames of particular sex crimes" ( People v. Jabaut, 111 A.D.3d 1140, 1144, 976 N.Y.S.2d 262 [2013], lv denied 22 N.Y.3d 1139, 983 N.Y.S.2d 498, 6 N.E.3d 617 [2014] ). We find that the verdict is supported by the weight of the evidence, with the exception of one conviction (see People v. Chaneyfield, 157 A.D.3d 996, 999–1000, 69 N.Y.S.3d 144 [2018], lv denied 31 N.Y.3d 1012, 78 N.Y.S.3d 282, 102 N.E.3d 1063 [2018] ; People v. Lancaster, 143 A.D.3d 1046, 1047–1049, 41 N.Y.S.3d 129 [2016], lv denied 28 N.Y.3d 1147, 52 N.Y.S.3d 298, 74 N.E.3d 683 [2017] ; People v. Din, 110 A.D.3d 1246, 1247–1248, 974 N.Y.S.2d 599 [2013], lv denied 22 N.Y.3d 1137, 983 N.Y.S.2d 496, 6 N.E.3d 615 [2014] ).

The one exception arises out of counts 32, 33 and 34 of the indictment, each of which charged defendant with criminal sexual act in the second degree on the ground that he engaged in oral sexual conduct with...