People v. Pendell

• Decision Date: 23 August 2018
• Docket Number: 107184
• Citation: 164 A.D.3d 1063,82 N.Y.S.3d 257
• Parties: The PEOPLE of the State of New York, Respondent, v. Perry PENDELL, Appellant.
• Court: New York Supreme Court — Appellate Division

164 A.D.3d 1063

82 N.Y.S.3d 257

The PEOPLE of the State of New York, Respondent,

v.Perry PENDELL, Appellant.

107184

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

Calendar Date: June 8, 2018

Decided and Entered: August 23, 2018

Matthew C. Hug, Albany, for appellant, and appellant pro se.

Paul Czajka, District Attorney, Hudson (James Carlucci of counsel), for respondent.

Before: McCarthy, J.P., Egan Jr., Lynch, Clark and Pritzker, JJ.

MEMORANDUM AND ORDER

Lynch, J.

Appeal from a judgment of the County Court of Columbia County (Koweek, J.), rendered August 19, 2014, upon a verdict convicting defendant of the crimes of rape in the second degree (nine counts), criminal sexual act in the second degree, possessing a sexual performance by a child (four counts) and criminal solicitation in the second degree.

In May 2013, defendant—then 48 years old—was charged in a 27–count indictment (hereinafter the first indictment) with various offenses stemming from his alleged sexual contact, over a period of several months, with a 14–year–old girl (hereinafter the victim) that he met through an online adult dating service. While awaiting prosecution on these charges in jail, defendant approached another inmate about having the victim murdered and, as a result, was charged, in a second indictment (hereinafter the second indictment), with criminal solicitation in the second degree. County Court thereafter consolidated the two indictments. Following a jury trial, defendant was convicted of nine counts of rape in the second degree, one count of criminal sexual act in the second degree, four counts of possessing a sexual performance by a child and one count of criminal solicitation in the second degree. Defendant was sentenced to prison terms of seven years on each of his convictions for rape in the second degree, each to be followed by 10 years of postrelease supervision, 1? to 4 years on each of his convictions for possessing a sexual performance by a child and 2? to 7 years on his conviction for criminal solicitation in the second degree, all to be served consecutively. Defendant was also sentenced to a prison term of seven years for his conviction for criminal sexual act in the second degree, which County Court directed was to be served concurrently with his sentence on the first count of rape in the second degree. Defendant now appeals.

Defendant challenges his convictions as unsupported by legally sufficient evidence and against the weight of the evidence. Initially, defendant preserved his legal sufficiency argument only with respect to the four counts of possessing a sexual performance by a child by moving, pretrial, to dismiss those counts on the same grounds that he now raises on appeal (see People v. Finch, 23 N.Y.3d 408, 412–414, 991 N.Y.S.2d 552, 15 N.E.3d 307 [2014] ; People v. Mahboubian, 74 N.Y.2d 174, 188, 544 N.Y.S.2d 769, 543 N.E.2d 34 [1989] ).¹ Inasmuch as defendant's motion for a trial order of dismissal, made at the close of the People's proof and renewed at the close of all of the proof, was not " ‘specifically directed’ at the error[s] being urged" on appeal, his legal sufficiency challenge to the remainder of his convictions is unpreserved ( People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946 [2008], quoting People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] ; see People v. Stokes, 159 A.D.3d 1041, 1042, 71 N.Y.S.3d 746 [2018] ). Nevertheless, as part of our weight of the evidence review, we will necessarily assess whether each element of the charged crimes was proven beyond a reasonable doubt (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ; People v. Chaneyfield, 157 A.D.3d 996, 996, 69 N.Y.S.3d 144 [2018], lv denied 31 N.Y.3d 1012, 78 N.Y.S.3d 282, 102 N.E.3d 1063 [2018] ; People v. Holmes, 151 A.D.3d 1181, 1182, 59 N.Y.S.3d 143 [2017], lv denied 29 N.Y.3d 1128, 64 N.Y.S.3d 678, 86 N.E.3d 570 [2017] ).

Defendant argues that because the photographs underlying the four counts of possessing a sexual performance by a child do not depict genitalia, as required, they are not supported by legally sufficient evidence. "A person is guilty of possessing a sexual performance by a child when, knowing the character and content thereof, he [or she] knowingly has in his [or her] possession or control, or knowingly accesses with intent to view, any performance which includes sexual conduct by a child less than [16] years of age" ( Penal Law § 263.16 ). Under this particular section of the Penal Law, "[s]exual conduct" means, among other things, the "lewd exhibition of the genitals" ( Penal Law § 263.00[3] ). The lewd exhibition of any body part other than the genitals does not fall within the meaning of sexual conduct, as defined in Penal Law § 263.00(3) (see People v. Pinkoski, 300 A.D.2d 834, 836–837, 752 N.Y.S.2d 421 [2002], lv denied 99 N.Y.2d 631, 760 N.Y.S.2d 113, 790 N.E.2d 287 [2003] ).

The photographs that form the basis for defendant's convictions on counts 21, 22 and 27 of the first indictment depict only the victim's bare chest, which does not constitute "lewd exhibition of the genitals," as required for a conviction for possessing a sexual performance by a child (see Penal Law §§ 263.00[3] ; 263.16; People v. Pinkoski, 300 A.D.2d at 836–837, 752 N.Y.S.2d 421 ). Accordingly, defendant's convictions on counts 21, 22 and 27 of the first indictment must be reversed and those counts of the first indictment dismissed (see People v. Pinkoski, 300 A.D.2d at 836–837, 752 N.Y.S.2d 421 ). As to defendant's remaining conviction for possessing a sexual performance by a child (count 20 of the first indictment), we find that the underlying photograph, which depicts the victim posing completely nude, save for a portion of one pant leg, constitutes the lewd exhibition of genitalia within the meaning of Penal Law § 263.16 (see generally People v. Horner, 300 A.D.2d 841, 842–843, 752 N.Y.S.2d 147 [2002] ; compare People v. Gibeault, 5 A.D.3d 952, 954, 773 N.Y.S.2d 751 [2004] ). As the evidence further established that the victim was under the age of 16 at the time that the underlying photograph was taken and that defendant knowingly possessed the photograph, which was ultimately found on his cell phone, defendant's conviction on count 20 of the first indictment is supported by legally sufficient evidence (see Penal Law § 263.16 ; People v. Horner, 300 A.D.2d at 843–844, 752 N.Y.S.2d 147 ) and was not against the weight of the evidence (see People v. Sparagano, 153 A.D.3d 1367, 1367–1368, 60 N.Y.S.3d 484 [2017], lv denied 30 N.Y.3d 1063, 71 N.Y.S.3d 13, 94 N.E.3d 495 [2017] ).

As to defendant's contention that his remaining convictions are against the weight of the evidence, we have reviewed the proof supporting each conviction and are satisfied that the weight of the credible evidence supports defendant's convictions on nine counts of rape in the second degree (counts 1, 3, 5, 7, 9, 11, 13, 15 and 17 of the first indictment) (see Penal Law § 130.30[1] ; People v. Richards, 78 A.D.3d 1221, 1222–1224, 909 N.Y.S.2d 841 [2010], lv denied 15 N.Y.3d 955, 917 N.Y.S.2d 115, 942 N.E.2d 326 [2010] ; People v. Hebert, 68 A.D.3d 1530, 1531–1532, 891 N.Y.S.2d 708 [2009], lv denied 14 N.Y.3d 841, 901 N.Y.S.2d 147, 927 N.E.2d 568 [2010] ; People v. Workman, 56 A.D.3d 1155, 1156–1157, 868 N.Y.S.2d 430 [2008], lv denied 12 N.Y.3d 789, 879 N.Y.S.2d 66, 906 N.E.2d 1100 [2009] ; People v. Gray, 15 A.D.3d 889, 890, 788 N.Y.S.2d 792 [2005], lv denied 4 N.Y.3d 831, 796 N.Y.S.2d 586, 829 N.E.2d 679 [2005] ), one count of criminal sexual act in the second degree (count 2 of the first indictment) (see Penal Law § 130.45[1] ; People v. Richards, 78 A.D.3d at 1222–1224, 909 N.Y.S.2d 841 ) and one count of criminal solicitation in the second degree (count 1 of the second indictment) (see Penal Law § 100.10 ; People v. Adamek, 69 A.D.3d 979, 980, 892 N.Y.S.2d 628 [2010], lv denied 14 N.Y.3d 797, 899 N.Y.S.2d 131, 925 N.E.2d 935 [2010] ; People v. Bongarzone, 116 A.D.2d 164, 168, 500 N.Y.S.2d 532 [1986], affd 69 N.Y.2d 892, 515 N.Y.S.2d 227, 507 N.E.2d 1083 [1987] ).

The victim testified at trial that, in or around October 2012, when she was 14 years old, she met a man named Jason—whom she later identified as defendant—through an online adult dating service wherein she represented that she was 19 years old and seeking to meet adult males for sexual contact. According to the victim, on approximately 10 to 13 occasions thereafter, defendant picked her up at her home and brought her to a nearby motel, where the two would engage in "[n]ormal" sex and oral sex.² She testified that, after their first encounter, she continued to have sexual contact with defendant only because he would provide her with marihuana. As established by text messages between defendant and the victim, the victim expressed to defendant in mid January 2013 that she no longer wanted to have sex with him, to which defendant replied that if she did not "pay as normal," she would have to purchase the marihuana. The text messages further reveal that defendant continued to contact the victim throughout the following month regarding a debt that she owed him. In particular, defendant stated that if she could not come up with the required money by the end of the month, he would have to take "extreame [sic] measures" and send someone to collect the debt. The victim testified that she attempted suicide in March 2013 and, while hospitalized thereafter, disclosed her involvement with defendant to her therapist and parents.

In April 2013, law enforcement conducted a sting operation in which an investigator sent defendant text messages from the victim's cell phone requesting that the two meet to exchange sex for marihuana and to satisfy the victim's outstanding debt. When defendant arrived at the prearranged location, expecting to meet the victim, he was apprehended by the police. A subsequent search of his person...