People v. Spicola

• Decision Date: 31 March 2011
• Citation: 947 N.E.2d 620,2011 N.Y. Slip Op. 02484,922 N.Y.S.2d 846,16 N.Y.3d 441
• Parties: The PEOPLE of the State of New York, Respondent,v.Michael SPICOLA, Appellant.
• Court: New York Court of Appeals Court of Appeals

16 N.Y.3d 441
947 N.E.2d 620
922 N.Y.S.2d 846
2011 N.Y. Slip Op. 02484

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

Court of Appeals of New York.

March 31, 2011.

[922 N.Y.S.2d 847]

Lipsitz Green Scime Cambria, LLP, Buffalo (Paul J. Cambria, Jr., Roger W. Wilcox, Jr., and Timothy P. Murphy of counsel), for appellant.Frank A. Sedita, III, District Attorney, Buffalo (Shawn P. Hennessy and Donna A. Milling of counsel), for respondent.

[16 N.Y.3d 445] [947 N.E.2d 621] OPINION OF THE COURT READ, J.

On November 16, 2006, defendant Michael Spicola was charged in a 10–count indictment with six counts of first-degree sodomy (Penal Law § 130.50 [3] ), three counts of first-degree sexual abuse (Penal Law § 130.65), and one count of endangering the welfare of a child (Penal Law § 260.10) stemming from three occasions when he was accused of engaging in reciprocal oral to genital contact with a young boy. These sexual encounters were alleged to have occurred between March 1, 1999 and April 30, 1999, a 61–day period when the boy was a six-year-old first grader; June 15, 2000 and August 31, 2000, a 77–day period during which the boy turned from seven to eight years old; and September 1, 2000 to November 30, 2000, a 91–day period when the boy was an eight-year-old third grader.

At defendant's subsequent jury trial, the boy's mother, a single parent, explained that defendant, her cousin, had been “involved in [her] life” after she moved back to western New York, where she grew up; he helped her out with chores, and occasionally watched her young son. The boy was friendly with defendant's daughter and youngest stepson, who were just a few years older than he was; he visited defendant's residence and slept over in 1999 and 2000 a “[f]ew times a year,” including during spring break in 1999. Defendant took the boy to sporting events, and was his soccer coach during 2004.

The mother first sensed that “something wasn't right” in early 2006, when defendant, who had a college degree in advanced accounting and was self-employed as a tax preparer, stopped by her house to drop off her tax return. Defendant approached her son and started to tickle him, which the mother did not consider to be anything other than ordinary horseplay; however, she thought her son's reactions were “weird.” First, he “went ... chest down on the ground ... and tightened up and then ... walked away” from defendant and retreated to the couch next to the chair in which she was seated. When defendant sat down beside the boy and rubbed his back, he responded by curling up into “the fetal position ... and leaned away from” defendant.

[16 N.Y.3d 446] At some point the week after this episode, the mother cautioned her son that if “anybody ever touche[d][him] wrong [he] need[ed] to tell,” and reassured him that she would not care who it was, even if one of several male relatives whom she named, including defendant. The boy indicated that he had never experienced such a thing, saying “[N]o mom, it's fine.” He testified that he answered in this way because

[947 N.E.2d 622 , 922 N.Y.S.2d 848]

he “didn't know if [he] could go to the police or not” and “thought [he] would get in trouble,” and defendant “was close to the family and [he] just thought something really bad would happen” if he revealed that defendant had touched him inappropriately But after the boy saw a video about on-line sexual predators, shown in his eighth-grade technology class in early April 2006, he realized that what defendant had done to him “was wrong,” and “felt like [he] should tell someone.” He resolved to confide in his mother, but still hesitated. Then, as he was showering before going to school on May 15, 2006, the day after Mother's Day, he felt as though he “couldn't hold it in anymore,” and he “just ran and told” his mother that “Mike had touched [him] many different ways.”

The boy made this disclosure at the age of 13, seven years after the first and almost six years after the last instance of alleged molestation. Upon hearing her son's account, the mother immediately called her own mother, who was at work at the time, and the boy's father, asking them to come to her house urgently. She testified that her son sat on the living room couch and cried for a long time after he divulged his secret, and that he was “withdrawn, sad, scared” as the day wore on, and for many months thereafter. The boy's grandmother and father recalled finding him crying when they arrived; they described the mother as angry and distraught. The mother contacted the police, and a detective from the Erie County Sheriff's Department called her back later that day. The following day, she took the boy to the Child Advocacy Center (CAC) in Buffalo, where he was interviewed by a prosecutor and examined by a nurse-practitioner, who recommended counseling.

On the witness stand, the boy recounted the sexual abuse as having taken place while defendant played “knee hockey” alone with him, in the nude, in the living room of defendant's home, generally in the afternoon. In this game, the players got down on their knees and tried to shoot a ball into designated goals, using miniature hockey sticks. On cross-examination, defense counsel pressed two considerations in particular: that the boy [16 N.Y.3d 447] had taken a long time to report these events; and that he had continued to associate with defendant in the meantime. Thus, defense counsel asked questions causing the boy to acknowledge that for six or seven years he neglected to alert his mother, his grandmother, his friends, his teachers or any doctor who examined him; and that he visited defendant's house after the last alleged sexual encounter, saw defendant several times a week during soccer season in 2004, when defendant coached his team, and accompanied him on outings to stock car races and professional hockey games when he was 12 or 13 years old. Defense counsel also elicited an admission that the boy had not mentioned one vivid detail of his story to the grand jury.

Defendant testified on his own behalf. He stated that the boy first slept over at his residence during Christmas vacation in 1999, not the spring of 1999, and that he next slept over, accompanied by a friend, during Christmas vacation in 2000 and the Martin Luther King holiday weekend in 2001. Defendant asserted that he was never at any time alone in his house with the boy because there were always other family members around while the boy was there. Further, the boy “beg[ged]” to stay overnight after a family reunion in the summer of 2001 because “a week or two before [he] bought [his] kids a trampoline and [the boy] was having a lot of fun playing on the trampoline.” According to defendant, the next time the boy slept over was after accompanying him and his youngest stepson to a stock car race over Memorial Day weekend of 2004; and he

[947 N.E.2d 623 , 922 N.Y.S.2d 849]

stayed over again, with another boy after again going to a stock car race with defendant, this time in late September 2004. Defendant testified that he took the boy to professional hockey games in November 2005 and March 2006.

In defendant's telling, “knee hockey” was a game “invented” by his three stepsons, which the children played in the living room of his house. He sometimes joined in, “[j]ust to have fun with [his] kids,” and the boy played with them when he visited. Defendant flatly denied ever having played “knee hockey” alone with the boy; he flatly denied the charges in the indictment.

On cross-examination, the prosecutor brought out that defendant had omitted his several-year stint as a full-time school bus driver from the lengthy work history he gave during direct examination. Defendant admitted that he was given a directive by the school superintendent in January 2002, and resigned from his post in May 2003 by mutual agreement with the union and the school district, although he denied ignoring the [16 N.Y.3d 448] directive.¹ He called the boy “a normal kid” with whom he had enjoyed good relations; he likewise indicated that he had always gotten along well with the boy's mother. Although defendant suggested that he might have “some ideas” about why the boy would He, he never shared these ideas with the jury. He admitted tickling and wrestling with the boy on occasion. Defendant denied having told the detective with whom he spoke by telephone on May 20, 2006 that he may have accidentally touched the boy in an intimate area, but noted that “whenever someone is wrestling you can accidentally touch someone's private parts.”

The jury convicted defendant on all counts. On August 9, 2007, the trial judge sentenced him to concurrent determinate terms of 12 years for first-degree sodomy; seven years for first-degree sexual abuse; and one year for endangering the welfare of a child. Defendant appealed on numerous grounds, including that the trial judge erred when he permitted testimony from a nurse-practitioner who examined the boy and expert testimony from a clinical social worker relating to child sexual abuse accommodation syndrome (CSAAS). On April 24, 2009, the Appellate Division affirmed (61 A.D.3d 1434, 877 N.Y.S.2d 591 [4th Dept 2009] ). A Judge of this Court granted defendant permission to appeal (14 N.Y.3d 805, 899 N.Y.S.2d 139, 925 N.E.2d 943 [2010] ), and we now affirm.

I. The Nurse–PractitionerA. The Objection

Defense counsel sought to preclude the testimony of the pediatric nurse-practitioner who examined the boy the day after he confided in his mother. He advanced several arguments: first, that the nurse “would not be in any position to give an opinion that the young man was molested or abused”; second, she found no physical evidence of sexual abuse; and third,

“she would be asked about a history that she received from [the boy], and by allowing that testimony that would be improper bolstering. It's not outcry because it's 6 or 7 years later. Even though they are statements made to a nurse...