People v. Santiago

• Decision Date: 12 June 2014
• Parties: The PEOPLE of the State of New York, Respondent, v. Michael A. SANTIAGO, Appellant.
• Court: New York Supreme Court — Appellate Division

118 A.D.3d 1163
987 N.Y.S.2d 692
2014 N.Y. Slip Op. 04277

The PEOPLE of the State of New York, Respondent,
v.
Michael A. SANTIAGO, Appellant.

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

June 12, 2014.

[987 N.Y.S.2d 693]

Smith Hernandez, LLC, Troy (Trey Smith of counsel), for appellant.

James A. Murphy III, District Attorney, Ballston Spa (Nicholas E. Tishler of counsel), for respondent.

Before: STEIN, J.P., McCARTHY, ROSE and EGAN JR., JJ.

ROSE, J.

Appeal from a judgment of the County Court of Saratoga County (Scarano, J.), rendered December 20, 2012, upon a verdict convicting defendant of the crime of course of sexual conduct against a child in the second degree (two counts).

Based on allegations by two victims (half sisters born in 1994 and 1995) that defendant had subjected them to sexual contact on multiple occasions, he was charged with, among other things, two counts of the crime of course of sexual conduct against a child in the second degree. The amended indictment's first renumbered count alleged that defendant's conduct against victim A occurred between 2001 and 2006, and the second count alleged that the conduct against victim B occurred between 2001 and 2008. Defendant was also charged with sexual abuse in the third degree and endangering the welfare of a child based on a 2011 incident regarding victim B. Following a jury trial, defendant was convicted of only the two counts of course of sexual conduct against a child in the second degree, and County Court sentenced him to consecutive four-year prison terms, with 10 years of postrelease supervision. He now appeals.

Defendant challenges the legal sufficiency of the evidence supporting the conviction with respect to the count alleging a course of sexual conduct against victim A. This argument, however, is unpreserved for our review because, even though defendant made a specific motion to dismiss this count at the close of the People's proof, he failed to renew the motion after the close of all the evidence ( see People v. Lane, 7 N.Y.3d 888, 889, 826 N.Y.S.2d 599, 860 N.E.2d 61 [2006];

[987 N.Y.S.2d 694]

People v. Dancy, 87 A.D.3d 759, 760, 928 N.Y.S.2d 143 [2011] ). Nevertheless, we will necessarily review whether the elements of the crime were adequately established at trial as part of our weight of the evidence review ( see People v. McRobbie, 97 A.D.3d 970, 971, 949 N.Y.S.2d 249 [2012],lv. denied20 N.Y.3d 934, 957 N.Y.S.2d 693, 981 N.E.2d 290 [2012];People v. Tucker, 95 A.D.3d 1437, 1438, 944 N.Y.S.2d 383 [2012],lv. denied19 N.Y.3d 1105, 955 N.Y.S.2d 561, 979 N.E.2d 822 [2012] ). Where, as here, a different verdict would not be unreasonable, we will, “like the trier of fact below, weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony” ( People v. Romero, 7 N.Y.3d 633, 643, 826 N.Y.S.2d 163, 859 N.E.2d 902 [2006] [internal quotation marks and citations omitted]; accord People v. Stewart, 60 A.D.3d 1111, 1113, 874 N.Y.S.2d 311 [2009],lv. denied12 N.Y.3d 860, 881 N.Y.S.2d 671, 909 N.E.2d 594 [2009] ). In doing so, we accord great deference to the jury's ability to view the witnesses and determine their credibility ( see People v. Romero, 7 N.Y.3d at 644, 826 N.Y.S.2d 163, 859 N.E.2d 902;People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987];People v. Allen, 13 A.D.3d 892, 894, 787 N.Y.S.2d 417 [2004],lv. denied4 N.Y.3d 883, 798 N.Y.S.2d 728, 831 N.E.2d 973 [2005] ).

In order to convict defendant of the crimes of course of sexual conduct against a child in the second degree, the People were required to establish that, over a period of not less than three months, when defendant was more than 18 years old, he engaged in two or more acts of sexual conduct with a child less than 13 years old ( seePenal Law § 130.80[1][b] ). As relevant here, “sexual conduct” includes “any touching of the sexual or other intimate parts of a person for the purpose of gratifying sexual desire” (Penal Law § 130.00 [3], [10] ). Defendant contends that there is insufficient evidence to establish the timing of the course of conduct against victim A and that the testimony of the victims and their mother was too inconsistent and improbable to support the jury's finding. The victims' mother...