People v. Morin

• Decision Date: 15 April 1993
• Citation: 192 A.D.2d 791,596 N.Y.S.2d 508
• Parties: The PEOPLE of the State of New York, Respondent, v. David J. MORIN, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 508

596 N.Y.S.2d 508

192 A.D.2d 791

The PEOPLE of the State of New York, Respondent, v. David J. MORIN, Appellant.

Supreme Court, Appellate Division Third Department.

April 15, 1993.

John T. Casey Jr., Albany, for appellant.

Mary O. Donohue, Dist. Atty. (Karen Eileen Carlson, of counsel), Troy, for respondent.

Before MIKOLL, J.P., and YESAWICH, MERCURE, CREW and HARVEY, JJ.

YESAWICH, Justice.

Appeal from a judgment of the County Court of Rensselaer County (Dwyer Jr., J.), rendered June 28, 1991, upon a verdict convicting defendant of the crimes of sodomy in the first degree (four counts), sexual abuse in the first degree and endangering the welfare of a child (two counts).

On June 1, 1990, defendant was indicted on four counts of sodomy in the first degree (counts one through four), one count each of using a child in a sexual performance (count five), sexual abuse in the first degree (count six) and sexual abuse in the second degree (count eight), and two counts of endangering the welfare of a child (counts seven and nine). This indictment, which arose from defendant's sexually abusive encounters with three children over several years, was the result of Grand Jury testimony furnished by the children (hereinafter referred to as T, J and N), their mothers and the officer who took defendant's written statement, as well as by the substance of that statement.

Defendant moved to dismiss the indictment on the ground that it was not supported by legally sufficient evidence; this motion was denied after County Court conducted an in camera review of the Grand Jury minutes. Defendant also moved to suppress his statement asserting that it was not voluntarily made; after a hearing, this motion was also denied. Before the statement was admitted at trial, however, it was agreed among counsel and the court that certain portions, dealing with a fourth victim, would be redacted, and they were. Convicted of seven of the nine counts, and sentenced to an aggregate period of between 21 and 57 years of incarceration, defendant appeals.

Defendant contends that the proof before the Grand Jury on counts one through five (specifically the uncorroborated, unsworn testimony of T, who was eight years of age at the time) was not legally sufficient to support those counts. Inasmuch as defendant's conviction on counts one through four is based upon legally sufficient trial evidence--not unimportantly, County Court found at the time of trial that T understood the nature of an oath (CPL 60.20[1], [2] and was able to give sworn testimony--defendant cannot challenge the sufficiency of the evidence which was before the Grand Jury (see, People v. Thomas, 148 A.D.2d 883, 884, 539 N.Y.S.2d 693, lv. denied 74 N.Y.2d 748, 545 N.Y.S.2d 122, 543 N.E.2d 765; People v. Widmer, 137 A.D.2d 929, 931, 525 N.Y.S.2d 353, lv. denied 72 N.Y.2d 868, 532 N.Y.S.2d 518, 528 N.E.2d 908). And, with respect to count five, it suffices to note that defendant was found not guilty of this count.

With regard to his written statement, defendant argues that although it was redacted to remove all references to uncharged crimes involving a different victim, it still contained material which was unfairly prejudicial. There having been no objection made to the admission of the statement as redacted, this issue has not been preserved for review. Moreover, the statement, as admitted, does not contain evidence of prior abuse of the victims, but only evidence of sexual contact at some of the times and places charged in the indictment, which is obviously relevant. Defendant's admission that he touched T's genitals bears on the credibility of her testimony, taken under oath at trial, that defendant engaged in oral contact with her vulva at the same time. Defendant's other admissions included engaging in a course of sexual conduct with J during 1983 and 1984 and with N throughout 1985, and also the possibility that he "played with [J] and [N]" after late 1985. Because these statements constitute direct evidence of the conduct charged in counts seven and nine, endangering the welfare of N and J, respectively, they cannot be said to be unduly prejudicial.

Also unpreserved for review is defendant's claim that County Court erred in failing to instruct the jury that defendant's statement required corroboration. And, given the extensive corroboration of defendant's statement, reversal of his convictions is not warranted on interest of justice grounds.

Defendant's contention that there was insufficient proof at trial to support the conviction on count nine, endangering the welfare of J, is likewise without merit. This argument finds its basis in the assertion that there was no proof of any sexual conduct that occurred both during the time period charged (October 1983 through July 23, 1988) and also during the appropriate limitations period (after June 1, 1988). J, however, testified that the abuse occurred "about every Sunday or every other Sunday" from the time he moved to a particular apartment in November 1985 until July 1988. This is sufficient proof of a continuing course of conduct extending into the limitations period, and thus supports the conviction.

Nor is there merit to defendant's contention that he was denied effective assistance of counsel. There is no showing that defendant's attorney failed to represent defendant's interests or to pursue an appropriate defense strategy. The actions of which defendant complains, including counsel's failure to move to...