People v. Maisonette

• Decision Date: 18 March 2021
• Docket Number: 108798
• Citation: 192 A.D.3d 1325,144 N.Y.S.3d 752
• Parties: The PEOPLE of the State of New York, Respondent, v. Joenathan MAISONETTE, Appellant.
• Court: New York Supreme Court — Appellate Division

192 A.D.3d 1325

144 N.Y.S.3d 752

The PEOPLE of the State of New York, Respondent,

v.Joenathan MAISONETTE, Appellant.

108798

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

Calendar Date: February 9, 2021

Decided and Entered: March 18, 2021

Adam G. Parisi, Schenectady, for appellant, and appellant pro se.

Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.

Before: Garry, P.J., Egan Jr., Pritzker, Reynolds Fitzgerald and Colangelo, JJ.

MEMORANDUM AND ORDER

Garry, P.J.

Appeals (1) from a judgment of the Supreme Court (Milano, J.), rendered August 11, 2016 in Schenectady County, upon a verdict convicting defendant of the crimes of criminal sexual act in the first degree and rape in the first degree, and (2) from an amended order of said court, entered May 16, 2019 in Schenectady County, which denied defendant's motion to, among other things, settle the record.

Defendant was charged by a four-count indictment with crimes related to his sexual abuse of an 11–year–old child (hereinafter the victim). At trial, Supreme Court dismissed one count, and the jury acquitted defendant of another count but convicted him of criminal sexual act in the first degree and rape in the first degree. The court sentenced him to two consecutive prison terms of 20 years, followed by 20 years of postrelease supervision. Defendant appeals from the judgment of conviction. Defendant later moved to settle the record on appeal and for a reconstruction hearing on the grounds that there were various alleged omissions and alterations to the transcripts. Defendant also appeals from Supreme Court's denial of that motion.

"Parties to an appeal are entitled to have that record show the facts as they really happened at trial, and should not be prejudiced by an error or omission of the stenographer" ( People v. Bethune, 29 N.Y.3d 539, 541, 59 N.Y.S.3d 301, 81 N.E.3d 835 [2017] [citation omitted]), but "not every dispute about the record mandates a reconstruction hearing" ( id. at 542, 59 N.Y.S.3d 301, 81 N.E.3d 835 [internal quotation marks, brackets, emphasis and citation omitted]). "Reconstruction hearings may be appropriate where it is clear that a proceeding took place that was not transcribed; the trial court refused to record the proceedings; the minutes have been lost; or there is significant ambiguity in the record" ( People v. Velasquez, 1 N.Y.3d 44, 49, 769 N.Y.S.2d 156, 801 N.E.2d 376 [2003] [internal citations omitted]). Despite defendant's arguments, none of these situations exists here; defendant merely asserts that the transcribed record omits some statements that he allegedly made at various times. However, the transcripts show that sometimes defendant began making the statements he alleged but was cut off by Supreme Court or advised not to speak. Thus, a reconstruction hearing would not be helpful, as the record makes clear that the statements were not omitted but, rather, the court prevented defendant from making such statements because he was represented by counsel, or it was an inappropriate time. It appears that the transcripts are generally accurate, defendant presented only his own affidavit to support his assertion that the alleged statements were made, and any missing words do not affect this Court's ability to resolve the appeal. Accordingly, as defendant failed to establish entitlement to a reconstruction hearing, the court did not err in denying defendant's motion (see People v. Bennett, 165 A.D.3d 1624, 1625, 85 N.Y.S.3d 662 [2018] ; compare People v. Johnson, 175 A.D.3d 14, 19, 104 N.Y.S.3d 397 [2019] ).

In challenging the weight of the evidence, defendant primarily contends that the victim's testimony was incredible. The victim unequivocally testified that defendant had subjected her to anal sexual contact on one occasion and vaginal intercourse on another. Medical evidence supporting the victim's disclosure indicated that the victim tested positive for a sexually transmitted infection and had an injury to her hymen that is "rarely seen in non-abused children." Other evidence included the victim's and defendant's birth certificates establishing their ages, and testimony from the victim's mother and a cousin establishing the times when the acts occurred and that defendant had access to the victim during those times. Although a different verdict would not have been unreasonable, the victim "was extensively cross-examined regarding the incident[s] and her account was not contradicted by any compelling evidence and was not so unworthy of belief as to be incredible as a matter of law" ( People v. Rose, 185 A.D.3d 1228, 1230, 127 N.Y.S.3d 632 [2020] [internal quotation marks, ellipsis and citations omitted], lv denied 35 N.Y.3d 1115, 133 N.Y.S.3d 514, 158 N.E.3d 531 [2020] ). Viewing the evidence in a neutral light and deferring to the jury's credibility determinations, the verdict is not against the weight of the evidence (see People v. Rose, 185 A.D.3d at 1230, 127 N.Y.S.3d 632 ; People v. Johnson, 183 A.D.3d 77, 87–88, 122 N.Y.S.3d 137 [2020], lv denied 35 N.Y.3d 993, 125 N.Y.S.3d 631, 149 N.E.3d 392 [2020] ).

"The prompt outcry doctrine is an evidentiary rule permitting the admission of hearsay evidence that a victim promptly complained of a sexual assault on the ground that some jurors would inevitably doubt the veracity of a victim who failed to promptly complain of a sexual assault" ( People v. Leonard, 177 A.D.3d 1158, 1160, 113 N.Y.S.3d 402 [2019] [internal quotation marks and citations omitted], lv denied 34 N.Y.3d 1160, 120 N.Y.S.3d 229, 142 N.E.3d 1131 [2020] ; see People v. Rosario, 17 N.Y.3d 501, 512, 934 N.Y.S.2d 59, 958 N.E.2d 93 [2011] ). "A prompt outcry is admissible to corroborate the allegation that an assault took place, as long as it is made at the first suitable opportunity" ( People v. Hackett, 167 A.D.3d 1090, 1094, 89 N.Y.S.3d 429 [2018] [internal quotation marks and citations omitted]), "but there is and can be no particular time specified[;][t]hus, promptness is a relative concept dependent on the facts" ( People v. McDaniel, 81 N.Y.2d 10, 17, 595 N.Y.S.2d 364, 611 N.E.2d 265 [1993] [internal quotation marks and citation omitted]; accord People v. Ortiz, 135 A.D.3d 649, 650, 25 N.Y.S.3d 81 [2016], lv denied 27 N.Y.3d 1004, 38 N.Y.S.3d 113, 59 N.E.3d 1225 [2016] ; see People v. Caban, 126 A.D.3d 808, 808–809, 6 N.Y.S.3d 73 [2015], lv denied 27 N.Y.3d 994, 38 N.Y.S.3d 104, 59 N.E.3d 1216 [2016] ). "[A] significant delay in reporting does not necessarily preclude outcry evidence, especially where the victim is a child" ( People v. Ortiz, 135 A.D.3d at 650, 25 N.Y.S.3d 81 ). Although the episodes of abuse described by the victim occurred on three different dates between February 2015 and April 2015 and the last episode did not result in a conviction, that last episode occurred four days prior to the disclosure reflected in the testimony of the victim and her mother. Considering the victim's age, that defendant was an authority figure in her life and her testimony that she was scared of defendant, Supreme Court did not err in concluding that such disclosure was admissible as a prompt outcry (see People v. Lapi, 105 A.D.3d 1084, 1088, 962 N.Y.S.2d 768 [2013], lv denied 21 N.Y.3d 1043, 972 N.Y.S.2d 541, 995 N.E.2d 857 [2013] ; People v. Stuckey, 50 A.D.3d 447, 448, 855 N.Y.S.2d 141 [2008], lv denied 11 N.Y.3d 742, 864 N.Y.S.2d 400, 894 N.E.2d 664 [2008] ; Matter of Gregory AA., 20 A.D.3d 726, 728, 799 N.Y.S.2d 830 [2005] ; compare People v. Ortiz, 135 A.D.3d at 650, 25 N.Y.S.3d 81 ).

On a related note, Supreme Court did not abuse its discretion in admitting testimony that the victim had observed defendant hitting her mother. The victim testified that she delayed in disclosing the abuse because she was afraid of getting in trouble by her mother or defendant, and she was scared of defendant because he had always given off a scary look and she had seen him hit her mother. The mother testified that, within the week before the victim's disclosure, the victim had witnessed defendant perpetrate a physical assault on the mother. The domestic violence was witnessed after the first two incidents of sexual abuse against the victim, but appears to have occurred prior to the final charged incident. Although the domestic violence could not have been the reason for the victim's initial failure to disclose, her observation of that event could be seen as a verification of her prior feeling that defendant was scary. As a victim's fear may be considered in determining whether a disclosure is prompt (see People v. Evangelista, 155 A.D.3d 972, 973, 65 N.Y.S.3d 240 [2017], lv denied 31 N.Y.3d 1013, 78 N.Y.S.3d 283, 102 N.E.3d 1064 [2018] ; People v. Sprague, 151 A.D.3d 1921, 1924, 59 N.Y.S.3d 221 [2017], lv denied 30 N.Y.3d 1023, 70 N.Y.S.3d 455, 93 N.E.3d 1219 [2017] ; People v. Stuckey, 50 A.D.3d at 448, 855 N.Y.S.2d 141 ; see also People v. Nicholson, 26 N.Y.3d 813, 829–830, 28 N.Y.S.3d 663, 48 N.E.3d 944 [2016] ; Matter of Gregory AA., 20 A.D.3d at 727–728, 799 N.Y.S.2d 830 ), this Molineux evidence was properly admitted because it provided necessary background as to why the victim feared defendant and completed the victim's narrative as to why she had not immediately disclosed the abuse (see People v. Latnie, 180 A.D.3d 1238, 1243, 119 N.Y.S.3d 291 [2020] ; People v. Conway, 179 A.D.3d 1218, 1220, 116 N.Y.S.3d 118 [2020], lv denied 35 N.Y.3d 941, 124 N.Y.S.3d 288, 147 N.E.3d 558 [2020] ). Furthermore, the court immediately provided limiting instructions to explain the proper use of, and minimize the prejudicial effect of, the testimony (see People v. Meadows, 183 A.D.3d 1016, 1021, 123 N.Y.S.3d 753 [2020], lv denied 35 N.Y.3d 1047, 127 N.Y.S.3d 825, 151 N.E.3d 506 [2020] ; People v. Schwerbel, 224 A.D.2d 830, 831–832, 638 N.Y.S.2d 198 [1996] ).

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