People v. Sammeth

• Decision Date: 14 January 2021
• Docket Number: 112346
• Parties: The PEOPLE of the State of New York, Respondent, v. Travis SAMMETH, Appellant.
• Court: New York Supreme Court — Appellate Division

190 A.D.3d 1112

139 N.Y.S.3d 435

The PEOPLE of the State of New York, Respondent,

v.Travis SAMMETH, Appellant.

112346

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

Calendar Date: December 16, 2020

Decided and Entered: January 14, 2021

Ostrer & Associates, PC, Chester (Benjamin Ostrer of counsel) and Hasapidis Law Offices, South Salem (Annette G. Hasapidis of counsel), for appellant.

David J. Clegg, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), for respondent.

Before: Garry, P.J., Egan Jr., Mulvey, Aarons and Reynolds Fitzgerald, JJ.

MEMORANDUM AND ORDER

Garry, P.J.

Appeal from a judgment of the County Court of Ulster County (Williams, J.), rendered November 25, 2019, upon a verdict convicting defendant of the crime of attempted rape in the second degree.

In September 2018, law enforcement officers assigned to the FBI's Child Exploitation and Human Trafficking Task Force conducted a sting operation in which they used adult websites to identify and arrest persons seeking to have sexual contact with minors. In defendant's case, a State Police investigator (hereinafter the investigator) posed online as a 38–year–old man offering sexual contact with his fictitious 14–year–old stepdaughter. Defendant communicated with the investigator through an adult website and, by instant message, agreed to meet the investigator and stepdaughter and traveled to the agreed-upon location for the purpose of having sexual contact with the stepdaughter. Upon defendant's arrival, he spoke briefly with another member of the Task Force who was posing as the stepfather (hereinafter the Task Force officer). He was then arrested.

Defendant was charged by indictment with one count of attempted rape in the second degree. Following a suppression hearing, he moved for reinspection of the grand jury minutes and dismissal of the indictment, alleging that the integrity of the proceedings was impaired by irregularities in the testimony. County Court granted the motion for reinspection and denied the motion for dismissal. Following a jury trial, defendant was convicted as charged. Thereafter, he moved to set aside the verdict and renewed his application for dismissal of the indictment. The court denied these motions and sentenced defendant to a probationary term of 10 years, with the first 90 days to be served in the Ulster County jail. Defendant appeals.

We reject defendant's contention that the verdict was against the weight of the evidence in that the People failed to prove that he "came dangerously close to engaging in [the crime of rape in the second degree]" ( People v. Butkiewicz, 175 A.D.3d 792, 793, 107 N.Y.S.3d 181 [2019] [internal quotation marks and citation omitted], lv denied 34 N.Y.3d 1076, 116 N.Y.S.3d 165, 139 N.E.3d 823 [2019] ; see Penal Law §§ 110.00, 130.30[1] ; compare People v. Hiedeman, 189 A.D.3d 1902, 1903-06, 136 N.Y.S.3d 577 [2020] ). The People's witnesses were the investigator, the Task Force officer and a detective in the Ulster County Sheriff's Department (hereinafter the detective) who interviewed defendant after his arrest. The investigator testified that he and other members of the Task Force conducted an operation over the course of three days in September 2018 in which they set up profiles on adult websites for the purpose of identifying and arresting persons seeking to have sexual contact with minors; the operation resulted in eight arrests. In defendant's case, the investigator created a profile on an adult website in which he claimed to be a 38–year–old man seeking an "open-minded" male to join him and an 18–year–old woman "for some taboo fun." Defendant responded to the posting through the website's messaging system. The investigator replied that his "situation [was] pretty taboo" and asked defendant to leave the website and discuss the matter on an instant messaging application known as Kik. The investigator testified that he made this request, and described the female as an adult in his profile, because the website did not permit discussions of underage sex.

Copies of these website communications and defendant's subsequent Kik exchange with the investigator were submitted into evidence. These show that, using Kik, the investigator told defendant that he was seeking a male partner for himself and his 14–year–old stepdaughter. Defendant asked for pictures of the stepdaughter, and the investigator responded by sending a photo of an undercover female officer, posing as the stepdaughter. Defendant requested a better picture; the investigator responded that he was uncomfortable sending a photo of the stepdaughter's face because of her youth, but that he could send one depicting her body. He sent two additional photos of the undercover officer in which her face was not visible, and defendant responded, "Cover her face. I might be interested."

Defendant then asked what the investigator and the stepdaughter were doing that night and where they could meet. The investigator suggested that they meet at a recreational vehicle (hereinafter the RV) in a store parking lot about 30 minutes from defendant's location, where he said they were camping; in fact, the RV had been set up by the Task Force for use as a meeting place with persons involved in the sting operation. Defendant agreed and told the investigator that he was on the way. As for sexual activity, defendant asked the investigator whether he wanted to "tag team." The investigator responded that he did, but advised defendant that anal intercourse would not be permitted. The investigator further stated that he was "straight" and did not want to have intentional contact with defendant, and defendant replied, "Same here." The investigator asked defendant to wear a condom because the stepdaughter was not using birth control. Defendant agreed and asked the investigator to get one for him.

The Task Force officer testified that he met defendant outside the RV upon his arrival, took the role of the stepfather, and engaged defendant in conversation. A video recording of this encounter was submitted at trial. The Task Force officer asked if defendant was a police officer, warning that "this is risky s* * *," and defendant responded that he was not. The Task Force officer told defendant that the stepdaughter was 14 years old and "just kinda getting into the swing of things," and that he did not want her to be hurt or be frightened. He cautioned defendant to be gentle, to "go slow," and to "back off a little bit" if needed. Defendant agreed with each of these warnings with such remarks as "Yeah," "[A]ll right," and "We'll see. We'll see how it goes. If it's not feeling right, we'll just go." The Task Force officer told defendant that he wanted to join defendant and the stepdaughter in the RV; defendant agreed, and the Task Force officer told defendant to "get something going and then the three of us will have a good time." Defendant responded, "We'll see what happens." The Task Force officer said, "If you want to lay her, that's good. She might do some other things, too." Defendant said, "All right." Upon a prearranged signal, defendant was then arrested.

The detective who interviewed defendant after his arrest testified about the interview, and a recording was played for the jury. Defendant admitted that the investigator had told him that the stepdaughter was 14 years old, saying, "And then I agreed, and then I still came up here." When pressed to describe the activities he expected to engage in with the stepdaughter, defendant was initially reticent, saying, "I mean, you guys know what I'm saying, I just don't want to say it." Later, however, he acknowledged that the purported stepfather had agreed to provide defendant with a condom and said that he was "complicit," or "just going along" with what the stepfather wanted to do, which was "I guess ... sexual intercourse." When asked who he believed would be "hooking up during the encounter," defendant responded, "[The stepfather] and [the stepdaughter] and then me and her."

Defendant argues that the People failed to prove attempt, as the proof does not show that he ever expressly stated an intention to have intercourse with the stepdaughter or to do anything more than talk to her. However, the jury could have found that defendant's intentions were implied by the proof, including, among other things, the testimony that defendant asked the investigator whether he wanted to "tag team" and to get him a condom, as well as defendant's admissions to the detective. As defendant argues, most of the specific suggestions for sexual activity were initiated by the officers rather than defendant; nevertheless, the record shows that he consistently expressed agreement with their proposals and never rejected or disagreed with them.

Defendant further argues that the officers' credibility was damaged by certain inaccuracies in their grand jury testimony that conflicted with their trial testimony. Specifically, the investigator acknowledged that, when he printed out his Kik exchange with defendant immediately after his arrest, he inadvertently failed to include the first two remarks in the exchange, and did not discover the error until after he erroneously testified before the grand jury that he was describing the complete exchange. The detective incorrectly testified before the grand jury that defendant had said that he had spoken on the telephone with the investigator, when in fact their exchange was confined to online messaging. Finally, the Task Force officer made several statements before the grand jury that were inaccurate or that defendant contends could have misled the grand jury. For example, the Task Force officer told the grand jury that he and defendant "discussed what type of sex acts [defendant] wanted to perform." Defendant asserts that this could have misled the grand jury into believing that defendant had expressly stated his intent to have sexual intercourse, when in fact he had merely agreed with...