People v. Nailor
| Decision Date | 13 January 2000 |
| Parties | 2000 N.Y. Slip Op. 255 The PEOPLE of the State of New York, Respondent, v. Scott R. NAILOR, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Gregory V. Canale, Glens Falls, for appellant.
Sterling T. Goodspeed, District Attorney (Kevin P. Bruen of counsel), Lake George, for respondent.
Before: PETERS, J.P., SPAIN, CARPINELLO, GRAFFEO and MUGGLIN, JJ.
Appeal from a judgment of the Supreme Court (Moynihan Jr., J.), rendered January 6, 1999 in Warren County, upon a verdict convicting defendant of the crimes of sodomy in the first degree (three counts), sodomy in the second degree (three counts) and sexual abuse in the second degree (two counts).
Indicted on 12 sex-related offenses, defendant was convicted following a jury trial on three counts each of sodomy in the first and second degrees and two counts of sexual abuse in the second degree. The sodomy convictions stem from allegations that he engaged in deviate sexual intercourse by forcible compulsion with his then 12-year-old stepdaughter in that he forced her to perform oral sex on him on three separate occasions during the spring of 1995. The sexual abuse convictions stem from allegations that he also had inappropriate sexual contact with her. The victim did not reveal these incidents to anyone until February 1998, when she began hallucinating about defendant's threatening conduct and ultimately suffered a nervous breakdown. On the sodomy in the first degree convictions, defendant was sentenced to consecutive prison terms of 8 1/3 to 25 years. On the sodomy in the second degree and sexual abuse convictions, he was sentenced to 2 to 6 years in prison and one year in jail, respectively, each to run concurrently with each other and the sodomy in the first degree sentences. Defendant appeals.
Defendant initially claims that the first three counts of the indictment are multiplicitous. Fundamentally, an indictment is multiplicitous when "two separate counts * * * charge the same crime" (People v. Kindlon, 217 A.D.2d 793, 795, 629 N.Y.S.2d 827, lv. denied 86 N.Y.2d 844, 634 N.Y.S.2d 453, 658 N.E.2d 231). We note first that this argument is unpreserved for our review since defendant failed to recite this alleged defect in the stipulation in lieu of motions (see, People v. Halpin, 261 A.D.2d 647, 647, 691 N.Y.S.2d 579, 580, lv. denied 93 N.Y.2d 971, 695 N.Y.S.2d 57, 716 N.E.2d 1102; People v. Tice, 147 A.D.2d 776, 778, 537 N.Y.S.2d 648, lv. denied 74 N.Y.2d 748, 545 N.Y.S.2d 122, 543 N.E.2d 765). In any event, there is no multiplicity since, although the first three counts of the indictment charge the same crime--sodomy in the first degree--they each relate to conduct on three separate and distinct occasions, albeit during the same time period, namely, the spring of 1995. Thus, the second and third counts each required proof of an additional fact (i.e., a second and third incident of forced deviate sexual intercourse between defendant and the victim), vitiating the claimed multiplicity (see, People v. Kindlon, supra, at 795, 629 N.Y.S.2d 827). 1
We next turn to defendant's contention that the element of forcible compulsion was not established with respect to counts two and three. 2 At trial, the victim testified that on three separate evenings when her mother was out caring for defendant's terminally ill stepfather, defendant touched her inappropriately and forced her to perform oral sex on him. On the first occasion, defendant threatened to harm her mother, with whom he had a tumultuous relationship, if she did not accede to his requests. This express threat, the victim testified, remained "burned into [her] memory" during the next two incidents. Significantly, in response to a question on cross-examination regarding whether defendant "ever [had] to repeat that [threat]" on the subsequent occasions, the victim answered, "He only had to tell me once." The victim further detailed that defendant used physical force to ensure her performance of the charged acts. According to her, on each occasion, defendant grabbed her hand and took her into a bedroom in their house, pushed her head down onto him and, when finished, directed her to go to bed.
In addition to the victim's testimony, the jury heard testimony regarding defendant's oral and written statements to police. In these statements, defendant admitted that he had sexual contact with the victim when she was 11 or 12 years old, but claimed that she was the "aggressor". According to the police investigator who took defendant's statements, defendant also linked the incidents to the time of his stepfather's illness. Defendant took the stand in his own defense, denied the victim's accusations and claimed that his statements to police were the result of undue pressure on their part, contentions the jury obviously rejected.
Viewing the evidence in the light most favorable to the People (see, People v. Thompson, 72 N.Y.2d 410, 413, 534 N.Y.S.2d 132, 530 N.E.2d 839) and considering "whether there is any valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial * * * and as a matter of law satisfy the proof and burden requirements for every element of the crime[s] charged" (People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [citation omitted] ), we are satisfied that the element of forcible compulsion was satisfied. As relevant here, " '[f]orcible compulsion' means to compel by either * * * use of physical force; or * * * a threat, express or implied, which places a person in fear of * * * physical injury to himself, herself or another person" (Penal Law § 130.00[a], [b] ). Given the victim's age and testimony about the lasting effects his threats had on her, it is readily inferable that, when defendant sodomized the victim for the second and third time, she continued to believe his previous threat to harm her mother if she did not comply. In any event, given the evidence that defendant...
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