People v. Parnell

• Decision Date: 29 December 2011
• Citation: 940 N.Y.S.2d 773,34 Misc.3d 77,2011 N.Y. Slip Op. 21461
• Parties: The PEOPLE of the State of New York, Respondent, v. Lacell PARNELL, Appellant.
• Court: New York Supreme Court — Appellate Division

2011 N.Y. Slip Op. 21461

34 Misc.3d 77

940 N.Y.S.2d 773

The PEOPLE of the State of New York, Respondent,

v.Lacell PARNELL, Appellant.

Supreme Court, Appellate Term,2nd, 11th and 13th Judicial Districts.

Dec. 29, 2011.

Charles J. Hynes, District Attorney, Brooklyn (Leonard Joblove, Camille O'Hara Gillespie and Jill Oziemblewski of counsel), for respondent.

Law Offices of Audrey A. Thomas, P.C., Rosedale (Audrey A. Thomas of counsel), for appellant.

PRESENT: STEINHARDT, J.P., PESCE and WESTON, JJ.

Appeal from a judgment of the Criminal Court of the City of New York, Kings County (William L. McGuire, Jr., J.), rendered October 16, 2009, and an order of the same court dated October 16, 2009. The judgment convicted defendant, upon a jury verdict, of forcible touching (three counts), sexual abuse in the second degree (three counts), sexual abuse in the third degree (three counts), endangering the welfare of a child (two counts), and aggravated harassment in the second degree. The order, following a hearing, designated defendant a level three sex offender pursuant to Correction Law article 6–C. ORDERED that the judgment of conviction is affirmed; and it is further,

ORDERED that the order is affirmed, without costs.

The People filed an information charging defendant with three counts of forcible touching (Penal Law § 130.52), three counts of sexual abuse in the second degree (Penal Law § 130.60[2] ), three counts sexual abuse in the third degree (Penal Law § 130.55), two counts of endangering the welfare of a child (Penal Law § 260.10[1] ), aggravated harassment in the second degree (Penal Law § 240.30[1][a] ), and two counts of harassment in the second degree (Penal Law § 240.26[1] ), based on his conduct toward a 13–year–old male that involved sexual contact, exhibiting to the child a sexually explicit video, and other communications of an explicitly sexual nature. At the commencement of the jury trial, the Criminal Court granted the People's motion to dismiss the two counts of harassment in the second degree. After the trial, which included the victim's narrative testimony of defendant's sexual conduct, the admission into evidence of the video which had been recovered from a laptop computer that defendant had produced to the police as his personal property, and the testimony of a forensic psychologist on the subject of adolescent sexual abuse syndrome, the jury convicted defendant of all the remaining counts. After sentence was imposed and a hearing held, defendant was designated a level three sex offender.

On appeal, defendant argues first that playing the video repeatedly to the jury (three times according to defendant, but only twice according to the record) served only to inflame the jury's passions and was of questionable evidentiary value given that it was not proven that it was defendant who had committed the sexual acts depicted therein. However, the victim asserted that defendant had informed him that defendant was the “actor” in the video, which depicted a male masturbating and performing other acts of a sexually explicit nature. In any event, it is irrelevant, for the commission of the crime of endangering the welfare of a child, whether the identity of the person in the video is known. Although played more than once to the jury, the video evidence was the basis of one of the two counts of endangering the welfare of a child ( e.g. People v. Velez, 190 Misc.2d 206, 737 N.Y.S.2d 819 [Sup. Ct., N.Y. County 2002] ), and, as a general rule, photographs and similar evidence are admissible “if they tend to prove or disprove a disputed or material issue, to illustrate or elucidate other relevant evidence, or to corroborate or disprove some other evidence offered or to be offered ... [and should be excluded] only if their sole purpose is to arouse the emotions of the jury and to prejudice the defendant” ( People v. Pobliner, 32 N.Y.2d 356, 369–370, 345 N.Y.S.2d 482, 298 N.E.2d 637 [1973]; see e.g. People v. Stebbins, 280 A.D.2d 990, 720 N.Y.S.2d 672 [2001] ). The record does not indicate that the defense timely objected to the second playing of the video, and defendant does not deny that playing such a video to a 13–year–old commits the offense. Further, the Criminal Court instructed the jury that it was to consider the evidence solely in relation to only one of the two counts of endangering the welfare of a child, and it is presumed that the jury understood and followed this instruction ( People v. Berg, 59 N.Y.2d 294, 299–300, 464 N.Y.S.2d 703, 451 N.E.2d 450 [1983]; People v. Bobrowsky, 23 Misc.3d 137(A), 2009 N.Y. Slip Op. 50862(U), 2009 WL 1233795 [App. Term, 9th & 10th Jud. Dists. 2009] ). Having raised no objection to the charge, and having requested no amendments or amplifications, defendant is deemed to have acquiesced to the charge as given ( People v. Gega, 74 A.D.3d 1229, 904 N.Y.S.2d 716 [2010]; People v. Andujar, 180 A.D.2d 743, 580 N.Y.S.2d 379 [1992] ).

After the close of evidence, and immediately before summations, the defense purported to have discovered, by reference to a Web page connected to the victim, that the victim had admitted that he was of consenting age when allegedly victimized by defendant's conduct. The defense sought to recall the victim to confront him with this evidence. The court did not improvidently exercise its discretion in denying the motion. A trial court is vested with wide latitude to determine the admissibility of evidence, to control the conduct of a trial, and to keep the proof within admissible bounds. Consistent with that authority, a court has discretion to permit or deny a party's application to reopen the evidentiary portion of a case. Among the factors to be considered are the source and availability of the evidence, its probative significance with respect to material trial issues, and prejudice owing to associated delay in producing the evidence and adjournments to produce it ( Lagana v. French, 145 A.D.2d 541, 536 N.Y.S.2d 95 [1988]; see also Feldsberg v. Nitschke, 49 N.Y.2d 636, 643, 427 N.Y.S.2d 751, 404 N.E.2d 1293 [1980] ). Here, the defense failed to exercise due diligence in discovering the evidence which, concededly, had been available prior to the trial. Further, exploring the issue would have required that the child victim testify a second time. Not only would additional testimony be presumptively detrimental to the victim, but, generally, the orderly presentation of proof requires that “every witness be questioned in the first instance on all relevant matters of which he [or she] has knowledge and be excused at the completion of this testimony” in the interest of judicial economy and the ability of counsel to keep the jury's attention on the salient facts of the case ( Feldsberg v. Nitschke, 49 N.Y.2d at 643–644, 427 N.Y.S.2d 751, 404 N.E.2d 1293).

In any event, the defense failed to establish that the evidence was of sufficient probative value to merit the relief sought. Both the victim and his mother testified to the victim's birth date, and such testimony is competent to prove the fact ( People v. Scott, 61 A.D.3d 1348, 1349, 877 N.Y.S.2d 536 [2009]; People v. Bolden, 194 A.D.2d 834, 835, 598 N.Y.S.2d 603 [1993]; People v. Bessette, 169 A.D.2d 876, 877, 564 N.Y.S.2d 605 [1991] ). Although the victim's testimony “contained some contradictions, it was not so incredible as to be unworthy of belief” ( People v. Jackson, 148 A.D.2d 930, 539 N.Y.S.2d 168 [1989] ), and the jury had the opportunity to observe the victim and to determine, in part, from his physical appearance whether his testimony, and that of his mother, as to his date of birth should be credited ( see also People v. Blodgett, 160 A.D.2d 1105, 1106, 553 N.Y.S.2d 897 [1990] ). Finally, evidence may be excluded if the court deems it to be of limited probative value, too remote or speculative, or if its admission would obscure the main issues or confuse the jury ( People v. Paixao, 23 A.D.3d 677, 806 N.Y.S.2d 672 [2005] ). Defense counsel did not state that she was offering the evidence to impeach the victim's general credibility, or even specifically to defeat an element of the offenses, but to establish a motive to falsely accuse defendant as to the entirety of the abusive conduct alleged, a matter that was purely speculative.

We also find no error in admitting the expert testimony, to which the defense, in general, voiced no objection. The expert specifically denied having any...