People v. Pabon

• Citation: 2016 N.Y. Slip Op. 07108,28 N.Y.3d 147,42 N.Y.S.3d 659,65 N.E.3d 688
• Parties: The PEOPLE of the State of New York, Respondent, v. Luis A. PABON, Appellant.
• Decision Date: 01 November 2016
• Court: New York Court of Appeals

28 N.Y.3d 147
65 N.E.3d 688
42 N.Y.S.3d 659
2016 N.Y. Slip Op. 07108

The PEOPLE of the State of New York, Respondent,
v.
Luis A. PABON, Appellant.

Court of Appeals of New York.

Nov. 1, 2016.

42 N.Y.S.3d 660

Easton Thompson Kasperek Shiffrin LLP, Rochester (Brian Shiffrin of counsel), for appellant.

Sandra Doorley, District Attorney, Rochester (Robert J. Shoemaker of counsel), for respondent.

OPINION OF THE COURT

RIVERA, J.

65 N.E.3d 690

28 N.Y.3d 150

Defendant Luis A. Pabon challenges his conviction upon a nonjury verdict on the grounds that his prosecution is untimely, the judge was exposed to inadmissible opinion testimony prejudicial to the defense, and the judge erroneously refused to sequester items essential to defendant's claims of judicial misconduct. Contrary to defendant's argument, the tolling provision of CPL 30.10(3)(f) applies to his crime and as a result the indictment is not time-barred. Defendant's other claims present no basis to overturn his conviction, or otherwise disturb the decision below.

Defendant was indicted on one count of course of sexual conduct in the first degree (Penal Law § 130.75[1][a] ) for acts committed between 1998 and 1999 when he sexually assaulted AM, the seven-year-old daughter of defendant's former lover. Defendant was charged after AM disclosed the abuse to the police in 2012, when she was 21 years old.

Before trial, defendant moved to dismiss the indictment as time-barred. Supreme Court denied the motion, rejecting defendant's

42 N.Y.S.3d 661

argument that CPL 30.10(3)(f) did not toll the limitations period because such a reading would render the five-year limitations period in CPL 30.10(3)(e) superfluous.

At defendant's nonjury trial, an investigating officer testified that he believed defendant lied to him when defendant denied

28 N.Y.3d 151

the allegations during a post-arrest interview. Defense counsel objected, asserting that the investigator could not testify as to defendant's veracity because that was a matter to be determined solely by the court. The judge overruled the objection stating he was listening to the testimony and "not taking [the investigator's] judgment."

Defense counsel also moved for a mistrial twice, based on what counsel argued was inappropriate behavior by the judge "sitting as the sole juror in the case." Specifically, counsel objected to what he assumed was the judge's reading of a document not in evidence while the investigator testified and to the judge's note-taking and alleged operation of a cell phone and a computer during the trial. The court denied the mistrial motions, as well as counsel's request that the judge sequester his cell phone, computer, notes, and the document.

The Appellate Division affirmed the conviction, with one Justice dissenting (126 A.D.3d 1447, 7 N.Y.S.3d 743 [4th Dept.2015] ). As relevant here, the Court held that the indictment was not time-barred because CPL 30.10(3)(f) tolled the statute of limitations for defendant's crime until the victim attained the age of 18. The Court further concluded that admission of the investigator's opinion testimony was harmless error because "in a nonjury trial, the court is presumed to be capable of disregarding any improper or unduly prejudicial aspect of the evidence" (id. at 1448, 7 N.Y.S.3d 743 ). The Court also summarily rejected defendant's claim that he was denied appellate review by the judge's refusal to sequester the named items (id. at 1449, 7 N.Y.S.3d 743 ).

The dissent would have reversed and dismissed the indictment as time-barred, concluding that application of CPL 30.10(3)(f) to toll the five-year limitations period of CPL 30.10(3)(e) would render the latter superfluous and ineffective (id. at 1450, 7 N.Y.S.3d 743 ). The dissenting Justice granted defendant leave to appeal (

65 N.E.3d 691

25 N.Y.3d 1174, 15 N.Y.S.3d 305, 36 N.E.3d 108 [2015, DeJoseph, J.] ).

Defendant claims his prosecution is time-barred because the applicable five-year limitations period set forth in CPL former 30.10(3)(e) expired before the filing of the felony complaint, and the statute of limitations is not subject to tolling under CPL 30.10(3)(f). Defendant's argument is unpersuasive, misconstrues the statutory provisions, and ignores the relevant legislative history. The crime for which defendant stands convicted is expressly encompassed by CPL 30.10(3)(f), and involves the type of conduct the legislature sought to address

28 N.Y.3d 152

by expansive, albeit delayed, prosecution of multiple acts of sexual abuse against a minor.

It is well established that since "the clearest indicator of legislative intent is the statutory text, the starting point in any case of interpretation must always be the language itself, giving effect to the plain meaning thereof" (People v. Golo, 26 N.Y.3d 358, 361, 23 N.Y.S.3d 110, 44 N.E.3d 185 [2015], citing Majewski v. Broadalbin–Perth Cent. School Dist., 91 N.Y.2d 577, 583, 673 N.Y.S.2d 966, 696 N.E.2d 978 [1998] ). "[W]hen the statutory language is clear and unambiguous, it should be construed so as to give effect to the plain meaning of the words used" (People v. Jones, 26 N.Y.3d 730, 733, 27 N.Y.S.3d 431, 47 N.E.3d 710 [2016] ). Further, "[a]ll parts of a statute must be

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harmonized with each other as well as with the general intent of the whole statute, and effect and meaning must, if possible, be given to the entire statute and every part and word thereof" (McKinney's Cons. Laws of N.Y., Book 1, Statutes § 98[a] ).

In 1996, the legislature enacted Penal Law § 130.75 creating the crime for which defendant was convicted, course of sexual conduct against a child in the first degree (L. 1996, ch. 122, § 6). At the same time the legislature added CPL 30.10(3)(e) and (f). Section 30.10(3)(e) provided, in relevant part, that "[a] prosecution for course of sexual conduct in the first degree as defined in section 130.75 of the penal law... may be commenced within five years of the commission of the most recent act of sexual conduct." Section 30.10(3)(f) tolls the limitations period in a prosecution of a sex offense against a minor, and mandates,

"[f]or purposes of a prosecution involving a sexual offense as defined in article one hundred thirty of the penal law committed against a child less than eighteen years of age ..., the period of limitation shall not begin to run until the child has reached the age of eighteen or the offense is reported to a law enforcement agency or statewide central register of child abuse and maltreatment, whichever occurs earlier."

In 2006, the legislature eliminated the statute of limitations in CPL 30.10(3)(e) for course of sexual conduct against a child in the first degree, and in its place, by amendment to CPL 30.10(2)(a), provided that prosecution of this crime "may be commenced at any time" (CPL 30.10, as amended by L. 2006, ch. 3). The legislature intended that the change apply retroactively to

28 N.Y.3d 153

offenses whose respective statutes of limitations had not expired by the effective date of the amendment (L. 2006, ch. 3, § 5 [eff. June 2006], reprinted in 2006 McKinney's Session Laws of N.Y. at 5; see generally Stogner v. California, 539 U.S. 607, 123 S.Ct. 2446, 156 L.Ed.2d 544 [2003] ).

By its plain language, and under prescribed circumstances not challenged on this appeal, CPL 30.10(3)(f) tolls the period of limitations applicable to course of sexual conduct against a child in the first degree, as defined in Penal Law § 130.75(1)(a). Defendant does not challenge the clarity of the text or this direct line of analysis.

65 N.E.3d 692

Instead, defendant claims that the application of this interpretation presents a statutory conflict. As defendant sees it, because the tolling provision in CPL 30.10(3)(f) applies to the general five-year statute of limitations in CPL 30.10(2)(b), which governs all non-class A felonies including, by definition, defendant's crime, and since his crime is a continuing crime, meaning the limitations period would have commenced with the last act committed, there is no circumstance under which the specific limitations period in CPL 30.10(3)(e) controls, rather than the period in CPL 30.10(2)(b). In that case, CPL 30.10(3)(e) serves no purpose and is mere statutory surplus. Defendant argues this result is in contravention of the rules of statutory interpretation which require both that a statute be construed to give meaning to all its words and that, where a conflict arises between parts of a statute, the specific overrides the general. To avoid this result, defendant claims that the tolling provision in paragraph (f) should not apply to the statute of limitations in paragraph (e).

Defendant's proposed construction can neither be squared with the text, legislative purpose, and...