People v. Starnes
| Decision Date | 09 June 2022 |
| Docket Number | 109472 |
| Parties | The People of the State of New York, Respondent, v. James R. Starnes, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Calendar Date:April 27, 2022
Paul J. Connolly, Delmar, for appellant.
Michael A. Korchak, District Attorney, Binghamton (Rita M Basile of counsel), for respondent.
Before: Clark, J.P., Pritzker, Colangelo, Ceresia and McShan, JJ.
Appeals (1) from a judgment of the County Court of Broome County (Dooley, J.), rendered May 5, 2017, upon a verdict convicting defendant of the crimes of predatory sexual assault against a child, criminal sexual act in the second degree (two counts), sexual abuse in the first degree, rape in the second degree and course of sexual conduct against a child in the second degree, and (2) from an order of said court, entered May 26, 2021, which, among other things, settled the trial transcripts.
In April 2016, three siblings (hereinafter victims A, B and C; collectively referred to as the sibling victims) reported that defendant had sexually abused them. An investigation revealed that one of the sibling victims' friends (hereinafter victim D) had also been sexually abused. Defendant was charged, in two indictments, with predatory sexual assault against a child, two counts of criminal sexual act in the second degree, rape in the second degree, course of sexual conduct against a child in the second degree, two counts of sexual abuse in the first degree and four counts of endangering the welfare of a child. On the day of the trial, the endangering the welfare of a child counts were dismissed. Defendant was found guilty on all remaining counts except for one count of sexual abuse in the first degree pertaining to victim B. Defendant was sentenced to various consecutive and concurrent prison terms, amounting to an aggregate prison term of 30 years to life, to be followed by three years of postrelease supervision. Defendant appealed from the judgment of conviction.
While this appeal was pending, this Court granted defendant's motion for a reconstruction hearing for "the portion of the voir dire proceedings conducted on February 28, 2017" in connection with jury selection (2020 NY Slip Op 72835[U]). As such, this Court held the appeal in abeyance and remitted the matter to County Court for said hearing (id.). Defendant also made a separate motion before County Court to amend the transcripts and settle the record accordingly. After the reconstruction hearing, County Court determined that there was nothing to suggest that anything "untoward" had happened during jury selection. Additionally, the court denied defendant's motion to amend the transcripts and ordered the transcripts certified as correct. Defendant also appeals from the order denying his motion.
Initially, defendant's contention that the evidence is legally insufficient because the victims' testimony was incredible as a matter of law is devoid of merit (see People v Jones, 89 A.D.3d 1395, 1396 [2011], lv denied 18 N.Y.3d 925 [2012]; People v Smith, 272 A.D.2d 713, 716 [2000], lv denied 95 N.Y.2d 871 [2000]; see generally People v Hansel, 200 A.D.3d 1327, 1330 [2021], lv denied 38 N.Y.3d 927 [2022]; People v Van Alphen, 167 A.D.3d 1076, 1078 [2018], lv denied 32 N.Y.3d 1210 [2019]). Defendant failed to preserve for our review his further arguments challenging the legal sufficiency of the evidence (see People v Moore, 202 A.D.3d 1373, 1373 [2022]; People v Harris, 177 A.D.3d 1199, 1200 [2019], lv denied 35 N.Y.3d 970 [2020]). "Nevertheless, in reviewing whether the verdict is against the weight of the evidence, this Court necessarily must ensure that the People proved each element of the crime beyond a reasonable doubt" (People v Cooper, 196 A.D.3d 855, 858 [2021] [internal quotation marks and citations omitted], lv denied 37 N.Y.3d 1160 [2022]). "Additionally, where, as here, it would not have been unreasonable for the jury to have reached a different verdict, we must weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony to determine if the verdict is supported by the weight of the evidence" (People v Persen, 185 A.D.3d 1288, 1289 [2020] [citations omitted], lv denied 36 N.Y.3d 1099 [2021]).
In addition to generally challenging the weight of the evidence, defendant alleges two specific evidentiary deficiencies. One such error is that, as to the top count of predatory sexual assault against a child, there was no evidence of a course of sexual conduct against victim A lasting three months or longer. The other such error is that, as to the one count of sexual abuse in the first degree as to victim A, there was no evidence of forcible compulsion. As relevant here, "[a] person is guilty of predatory sexual assault against a child when, being [18] 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 [13] years old" (Penal Law § 130.96). "A person is guilty of course of sexual conduct against a child in the first degree when, over a period of time not less than three months in duration[, ]... he or she, being [18] years old or more, engages in two or more acts of sexual conduct, which include at least one act of sexual intercourse[ or] oral sexual conduct..., with a child less than [13] years old" (Penal Law § 130.75 [1] [b]). As to sexual abuse in the first degree, (Penal Law § 130.65 [1]). "Within the context of sex offenses, forcible compulsion 'means to compel by either use of physical force; or a threat, express or implied, which places [the victim] in fear of immediate death or physical injury'" (People v Garrand, 189 A.D.3d 1763, 1764 [2020] [ellipses omitted], lv denied 36 N.Y.3d 1120 [2021], quoting Penal Law § 130.00 [8] [a], [b]).
Victim A testified that, at the time of trial in March 2017, she was 15 years old and in tenth grade. Prior to April 2016, victim A was living with defendant, her three sisters and occasionally her two older half brothers. The mother of the four daughters (hereinafter the sisters) was not living with them. Victim A detailed her family's history of moving to different apartments, specifically referencing three apartments, which established points of reference for her testimony, as well as other witnesses' testimony, regarding defendant's abuse. Victim A testified that she would have constant arguments with defendant and that there were times when he would punish her physically, such as by hitting her in the head, grabbing and twisting her wrist and hitting her with a belt. Victim A also saw her sisters punished in this fashion.
Victim A testified that the sexual abuse started when she was in sixth grade, living at the first of the three apartments and asked defendant for a bicycle. [1] He said that he would get her one if she "help[ed] him with stuff," which he explained to victim A as touching defendant's private parts and him touching victim A's private parts. Victim A's testimony then focused on the year before she turned 13 in May 2014. She testified that, during that year, she would touch defendant's penis with her hands and mouth and that defendant would usually ejaculate on her or, a few times, into her mouth. Among other sexual contact victim A testified about, she explained that, during the year before she turned 13, defendant engaged in sexual intercourse with her. Victim A testified that also, during the year before she turned 13, defendant subjected her to sexual contact multiple times a week. Victim A explained that the oral sexual conduct continued through the summer of 2014 and, after moving to a new apartment - the second of the three apartments - it continued during the fall of 2014. Victim A also recalled a specific incident that occurred in the fall of 2015, while living in the third of the three apartments. She testified that she was in the bathtub when defendant came into the bathroom, sat on the toilet and opened the shower curtain to look at her. He then reached his hand into the bath and digitally penetrated the victim's vagina, despite her saying no. She testified that she couldn't get out of the tub and away from him because the toilet was right next to the tub.
Victim A testified that defendant was generally able to get and maintain an erection although there were a few times that he was unable to. Victim A explained that she never told anyone what defendant was doing because he told her that no one would believe her, that she would be taken away and separated from her sisters. He also threatened her, saying that he would "hunt [her] down and kill [her] for destroying the family." Notably, victim B testified that she saw defendant and victim A in defendant's bedroom a few times in various states of undress but that she did not tell anyone except for one of her close friends because she did not think that anyone would believe her. Victim C recalled that one time she passed defendant's bedroom in the middle of the night and saw defendant in "a push-up position" over victim A.
Victim D, who was 17 at the time of the trial, testified that, in the summer of 2013, victim D became friends with the sisters and would occasionally stay at their apartment overnight. One day she went into defendant's bedroom when defendant was at his computer; after victim D sat on the bed, defendant asked her if she wanted to do something and then told her to take her clothes off and lie down. Victim D testified that defendant, who already had his shirt off, then slid his pants down and removed his underwear, got on top of her and...
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