People v. Shaughnessy

• Decision Date: 28 September 2001
• Docket Number: 00-01200,4
• Parties: PEOPLE OF THE STATE OF NEW YORK,MICHAEL SHAUGHNESSY,KA 00-01200. (Onondaga Co.) SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FOURTH JUDICIAL DEPARTMENT
• Court: New York Supreme Court — Appellate Division

PEOPLE OF THE STATE OF NEW YORK, PLAINTIFF-RESPONDENT,

V

MICHAEL SHAUGHNESSY, DEFENDANT-APPELLANT

KA 00-01200. (Onondaga Co.)

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION: FOURTH JUDICIAL DEPARTMENT

September 28, 2001

PRESENT: PIGOTT, JR., P. J., HAYES, HURLBUTT, BURNS AND GORSKI, JJ.

Judgment unanimously modified on the law and as modified affirmed in accordance with the following Memorandum: Defendant appeals from a judgment convicting him following a jury trial of four counts each of rape in the second degree (Penal Law § 130.30), incest (Penal Law § 255.25), and sexual abuse in the second degree (Penal Law § 130.60 [2]), and one count of endangering the welfare of a child (Penal Law § 260.10 [1]). County Court did not abuse its discretion in denying defendant's motions for a mistrial based on direct and indirect references to defendant's mental health (see generally, People v Ortiz, 54 N.Y.2d 288, 292). Nor was defendant denied a fair trial based on testimony concerning his silence during questioning by the police and his request for counsel; the court "gave an appropriate curative instruction" and thereby alleviated any prejudice to defendant (People v Clark, 281 A.D.2d 947, 948). In addition, the court did not abuse its discretion in denying defendant's challenge for cause to a prospective juror (see, People v Wiegert, 248 A.D.2d 929, lv denied 91 N.Y.2d 1014). Upon questioning by defense counsel, the prospective juror "clearly express[ed] that any prior * * * opinions that reveal[ed] the potential for bias [would] not prevent [him] from reaching an impartial verdict" (People v Arnold, ___ N.Y.2d ___ [decided June 12, 2001]).

The judgment must be modified, however, by reversing the conviction of counts seven through 15 of the indictment. Counts seven through 18, charging four acts each of rape in the second degree, incest, and sexual abuse in the second degree in January 1998, "were never linked sequentially or otherwise to the proof" (People v Ball, 231 A.D.2d 853, 854, lv denied 89 N.Y.2d 1032), and the victim testified to more than four instances of sexual contact during January 1998 (see, People v McNab, 167 A.D.2d 858; cf., People v Alston, 275 A.D.2d 997, lv denied 96 N.Y.2d 756). "Because the jury may have convicted defendant of * * * act[s] of rape[, incest, and sexual abuse] for which he was not indicted, defendant's right to have charges preferred by the Grand Jury rather than the prosecutor at trial was violated" (People v George, 255 A.D.2d 881; see, People v McNab, supra, at 858). In addition, "[i]t is impossible to ascertain * * * whether different jurors convicted defendant based on different acts" (People v McNab, supra, at 858). Furthermore, because the jury acquitted defendant of one count each of rape in the second degree (count 16), incest (count 17), and sexual abuse in the second degree (count 18), ...