People v. St. Ives

• Decision Date: 08 December 2016
• Citation: 145 A.D.3d 1185,43 N.Y.S.3d 187,2016 N.Y. Slip Op. 08256
• Parties: The PEOPLE of the State of New York, Respondent, v. Robert C. ST. IVES, Appellant.
• Court: New York Supreme Court — Appellate Division

145 A.D.3d 1185
43 N.Y.S.3d 187
2016 N.Y. Slip Op. 08256

The PEOPLE of the State of New York, Respondent,
v.
Robert C. ST. IVES, Appellant.

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

Dec. 8, 2016.

43 N.Y.S.3d 187

Samuel D. Castellino, Big Flats, for appellant.

P. David Soares, District Attorney, Albany (Brittany L. Grome of counsel), for respondent.

Before: PETERS, P.J., GARRY, EGAN JR., ROSE and MULVEY, JJ.

PETERS, P.J.

145 A.D.3d 1185

Appeal from a judgment of the County Court of Broome County (Smith, J.), rendered January 29, 2014, upon a verdict convicting defendant of the crime of predatory sexual assault against a child.

Defendant was charged in an eight-count indictment with various crimes based upon his alleged sexual abuse of

43 N.Y.S.3d 188

multiple victims. After his first trial ended in a mistrial and several counts of the indictment were dismissed for reasons not relevant here, defendant was retried on counts 1, 2, 5 and 7. Counts 1 and 2, each charging defendant with the crime of predatory sexual assault against a child, stem from allegations that he sexually abused victim A (born in 1998) and her friend, victim B (born in 1997), between the fall of 2008 and November 2010. Counts 5 and 7 charged defendant with the crimes of rape in the first degree and criminal sexual act in the first degree based upon conduct towards a third victim in 1999. County Court denied defendant's motion to sever counts 1 and 2 from counts 5 and 7. Following a jury trial, defendant was convicted of predatory sexual assault against a child pertaining to victim A and acquitted of the remaining charges. County Court denied defendant's subsequent motion to set aside the verdict and sentenced him to a prison term of 15 years to life. He appeals.

County Court did not abuse its discretion when it denied defendant's motion for severance. Although counts 5 and 7 were based upon incidents that occurred several years earlier than the conduct charged in counts 1 and 2, the charges were statutorily joinable as offenses "defined by the same or similar statutory provisions and consequently are the same or similar

145 A.D.3d 1186

in law" (CPL 200.20[2][c] ; see People v. Hunt, 39 A.D.3d 961, 962, 833 N.Y.S.2d 731 [2007], lv. denied 9 N.Y.3d 845, 840 N.Y.S.2d 771, 872 N.E.2d 884 [2007] ; People v. Nickel, 14 A.D.3d 869, 870, 788 N.Y.S.2d 274 [2005], lv. denied 4 N.Y.3d 834, 796 N.Y.S.2d 589, 829 N.E.2d 682 [2005] ). Since the offenses were properly joined, the decision whether to sever the counts for separate trials was committed to the sound discretion of the trial court (see People v. Mahboubian, 74 N.Y.2d 174, 183, 544 N.Y.S.2d 769, 543 N.E.2d 34 [1989] ; People v. Lakatosz, 59 A.D.3d 813, 815, 877 N.Y.S.2d 475 [2009], lv denied 12 N.Y.3d 917, 884 N.Y.S.2d 698, 912 N.E.2d 1079 [2009] ). Such discretion was not abused here. The proof concerning the relevant charges was "separately presented, uncomplicated and easily distinguishable" (People v. Kelly, 270 A.D.2d 511, 512, 705 N.Y.S.2d 689 [2000], lv. denied 95 N.Y.2d 854, 714 N.Y.S.2d 5, 736 N.E.2d 866 [2000] ; accord People v. Milford, 118 A.D.3d 1166, 1168, 987 N.Y.S.2d 696 [2014], lv. denied 23 N.Y.3d 1065, 994 N.Y.S.2d 324, 18 N.E.3d 1145 [2014] ; People v. Nickel, 14 A.D.3d at 870, 788 N.Y.S.2d 274 ), and County Court gave appropriate instructions to the jury that distinguished between the charges pertaining to each victim (see People v. Lakatosz, 59 A.D.3d at 815, 877 N.Y.S.2d 475 ; People v. Hunt, 39 A.D.3d at 962, 833 N.Y.S.2d 731 ; People v. Monte, 302 A.D.2d 687, 688, 756 N.Y.S.2d 293 [2003] ). Moreover, the fact that the jury found defendant not guilty of the crimes charged in counts 5 and 7 indicates that it separately considered and evaluated the evidence as to each victim (see People v. Milford, 118 A.D.3d at 1171, 987 N.Y.S.2d 696 ; People v. Nickel, 14 A.D.3d at 870, 788 N.Y.S.2d 274 ; People v. Monte, 302 A.D.2d at 688, 756 N.Y.S.2d 293 ; People v. Boyea, 222 A.D.2d 937, 939, 636 N.Y.S.2d 136 [1995], lv. denied 88 N.Y.2d 934, 647 N.Y.S.2d 167, 670 N.E.2d 451 [1996] ).

Nor are we persuaded that the verdict is contrary to the weight of the evidence. Insofar as is relevant here, "[a] person is guilty of predatory sexual assault against a child when, being eighteen years old or more, he or she commits the crime of ... course of sexual conduct against a child in the first degree ... and the victim is less than thirteen years old" (Penal Law § 130.96 ). The crime of course of sexual conduct against a child in the first degree,

43 N.Y.S.3d 189

in turn, requires proof that, over a period of time not less than three months, defendant "engage[d] in two or more acts of sexual conduct, which include[d] at least one act of sexual intercourse [or] oral sexual conduct ... with a child less than thirteen years old" (Penal Law § 130.75 [1] [b] ).

At trial, victim A recounted ongoing sexual abuse perpetrated against her by defendant beginning in the fall of 2008, when she was 10 years old and first came to live with defendant and his family, and continuing until she moved out of the residence in November 2010. She explained that the abuse initially consisted of groping her buttocks and "front private part" and quickly progressed to defendant subjecting her to oral sex and engaging her in sexual intercourse. She testified further that defendant penetrated her vagina with a pink "dildo" on more than one occasion, and subsequent forensic testing of that

145 A.D.3d 1187

device revealed victim A to be the major contributor of the DNA recovered therefrom. Victim A provided numerous and specific details of the abuse she was subjected to by defendant, explaining that such abuse primarily occurred on Saturday mornings when defendant's son and wife were undisputedly out of the house. Her testimony was also corroborated in part by victim B, who regularly came to the home to visit with victim A beginning in the fall of 2009. Victim B testified that, while at defendant's residence, she witnessed episodes in which defendant engaged victim A in sexual contact, including oral and vaginal sex, and claimed that she too was victimized by defendant on several occasions. Such abuse was ultimately disclosed by victim B to a school counselor in November 2010. Although victim A initially denied that defendant had engaged in any sexual contact with her, she explained that her hesitancy to reveal the abuse was a product of defendant's threats to send her back to foster care if she told anyone.

Defendant testified on his own behalf, denying that any of the alleged sexual contact had occurred and offering an explanation for victim A's motivation to fabricate the allegations against him. Such...