People v. Maggio

• Decision Date: 25 February 2010
• Citation: 70 A.D.3d 1258,2010 N.Y. Slip Op. 01553,896 N.Y.S.2d 220
• Parties: The PEOPLE of the State of New York, Respondent,v.Avery C. MAGGIO, Appellant.
• Court: New York Supreme Court — Appellate Division

70 A.D.3d 1258
896 N.Y.S.2d 220
2010 N.Y. Slip Op. 01553

The PEOPLE of the State of New York, Respondent,
v.
Avery C. MAGGIO, Appellant.

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

Feb. 25, 2010.

[896 N.Y.S.2d 221]

Paul J. Connolly, Delmar, for appellant.John W. Muehl, District Attorney, Cooperstown, for respondent.Before: PETERS, J.P., SPAIN, LAHTINEN, STEIN and GARRY, JJ.STEIN, J.

[70 A.D.3d 1258] Appeal from a judgment of the Supreme Court (Coccoma, J.), rendered June 9, 2008 in Otsego County, upon a verdict convicting defendant of the crimes of criminal sexual act in the first degree (three counts) and sexual abuse in the first degree (two counts).

In May 2007, defendant (born in 1989) was charged in an eight-count indictment with various sex crimes based upon allegations that he sexually abused the victim (born in 1993) while they rode the school bus home during 2005, 2006 and 2007. A jury found defendant guilty of three counts of criminal sexual act in the first degree and two counts of sexual abuse in the first degree. Supreme Court sentenced defendant to an aggregate term of 15 years in prison. Defendant now appeals and we affirm.

We are unpersuaded by defendant's contention that the evidence was legally insufficient and that the verdict was against the weight of the evidence with regard to the element of forcible compulsion. Defendant does not dispute that he engaged in sexual conduct with the victim, but argues that the evidence failed to establish that he compelled the victim to perform oral sex or engage in sexual conduct with him, either by physical force or by a threat that placed the victim “in fear of immediate death or physical injury to himself ... or another person” (Penal Law § 130.00[8][b] ). The element of forcible compulsion must be viewed through “the state of mind produced in the victim by the defendant's conduct” ( People v. Thompson, 72 N.Y.2d 410, 416, 534 N.Y.S.2d 132, 530 N.E.2d 839 [1988] ), considering all “relevant factors includ [ing] the age of the victim, the relative size and strength of the [70 A.D.3d 1259] defendant and victim, and the nature of the defendant's relationship to the victim” ( People v. Sehn, 295 A.D.2d 749, 750, 744 N.Y.S.2d 526 [2002], lv. denied 98 N.Y.2d 732, 749 N.Y.S.2d 482, 779 N.E.2d 193 [2002]; see People v. Scanlon, 52 A.D.3d 1035, 1038, 861 N.Y.S.2d 426 [2008], lv.

[896 N.Y.S.2d 222]

denied 11 N.Y.3d 741, 864 N.Y.S.2d 399, 894 N.E.2d 663 [2008]; People v. Val, 38 A.D.3d 928, 929, 830 N.Y.S.2d 391 [2007], lv. denied 9 N.Y.3d 852, 840 N.Y.S.2d 779, 872 N.E.2d 892 [2007]; People v. Newell, 290 A.D.2d 652, 653–654, 736 N.Y.S.2d 441 [2002], lv. denied 98 N.Y.2d 712, 749 N.Y.S.2d 9, 778 N.E.2d 560 [2002] ).

The record here establishes that defendant is a six-foot tall, 240–pound man, who is four years older than the victim. Defendant first engaged the victim in a sexual conversation when the victim was just nine years old. When the victim was 12 years old, defendant “pushed into the [bus] seat and told [the victim] to pull down [his] pants.” Upon the victim's refusal, defendant physically grabbed the victim's testicles and threatened to harm him. The victim testified that, as a result, he acquiesced to defendant's demands that he pull down his pants and permit defendant to touch his penis. In addition, defendant grabbed the victim's hands and placed them on defendant's penis. The victim further testified that defendant demanded and physically forced the victim to touch defendant's penis at other times and that, on at least two occasions, pulled the victim's head down and made the victim perform oral sex on him. On one occasion, defendant not only grabbed the victim's testicles, but also grabbed his arm and pinched him. On another occasion, defendant grabbed the victim's arm, leg and knee and caused him pain. According to the victim, defendant threatened to kill him and his mother if he did not comply with defendant's demands, and the victim believed those threats.

The focus with regard to the threat of harm is “not what the defendant would or could have done, ‘but rather what the victim, observing [the defendant's] conduct, feared [he] would or might do if [the victim] did not comply with [his] demands' ” ( People v. Thompson, 72 N.Y.2d at 415–416, ...