People v. Stewart
| Decision Date | 05 March 2009 |
| Docket Number | 101653. |
| Citation | 2009 NY Slip Op 01551,60 A.D.3d 1111,874 N.Y.S.2d 311 |
| Parties | THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. RANDAL E. STEWART, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Appeal from a judgment of the County Court of Montgomery County (Catena, J.), rendered November 27, 2007, upon a verdict convicting defendant of the crime of course of sexual conduct against a child in the second degree.
MALONE Jr., J.
In November 2006, defendant's four-year-old daughter described to her babysitter a game that she had played with her father, called the "belly bunker" game. The game consisted of defendant pulling down his pants and his daughter masturbating defendant's penis. As a result of this disclosure, defendant was charged in an indictment with the crime of course of sexual conduct against a child in the second degree encompassing sexual acts occurring between January 2004 and October 2006. During a police interrogation, defendant gave a written confession to the crime after waiving his Miranda rights. The confession was deemed admissible at trial following a Huntley hearing. A jury trial ensued, resulting in defendant's conviction of the crime charged. He was thereafter sentenced to six years in prison, to be followed by three years of postrelease supervision. He now appeals.
Defendant initially contends that the verdict is not supported by legally sufficient evidence insofar as there is inadequate proof that the alleged sexual acts occurred "(over a period of time) not less than three months in duration" as is required for the crime at issue (Penal Law § 130.80 [1]) or that defendant was the person who committed the crime. Preliminarily, we note that "[t]he standard of review on a challenge for legal sufficiency is whether `viewed in the light most favorable to the People, there exists a valid line of reasoning and permissible inferences from which a rational juror could conclude that each of the elements of the subject charges upon which defendant was convicted were established beyond a reasonable doubt'" (People v Alteri, 49 AD3d 918, 919 [2008], quoting People v Richardson, 28 AD3d 1002, 1004 [2006], lv denied 7 NY3d 817 [2006]; see People v Bleakley, 69 NY2d 490, 495 [1987]). Furthermore, "[i]n order to establish the charges of course of sexual conduct against a child in the second degree, the People were required to prove that `over a period of time not less than three months in duration . . . [defendant] engage[d] in two or more acts of sexual conduct with a child less than eleven years old'" (People v Harp, 20 AD3d 672, 672-673 [2005], lv denied 5 NY3d 852 [2005], quoting Penal Law § 130.80 [1] [a]; see People v Judkins, 41 AD3d 1046, 1047 [2007], lv denied 9 NY3d 962 [2007]).
Turning to the evidence presented at trial, defendant gave an admissible written confession in December 2006 detailing the times that he had sexual contact with the child going back two years. He described at least three incidents when he had his daughter touch his penis, under the guise of playing the belly bunker game, the last of which occurred in October 2006. His statement clearly established the time frame of the events and that the sexual conduct occurred over the course of nearly two years. Defendant's confession was sufficiently corroborated by the testimony of the child (see CPL 60.50). She related that she played the belly bunker game with her father from the time that she was three years old until he left the house, which other evidence established was when he went to Texas for air national guard training in October 2006. Although the child initially testified that she played the belly bunker game 160 times, she later stated that it was 100 times, more than the number of fingers she could hold up. Viewed in the light most favorable to the People, we find that legally sufficient evidence was presented from which a rational juror could conclude that the sexual conduct occurred for the necessary duration of time to satisfy the elements of the crime of course of sexual conduct against a child in the second degree.
Likewise, we are unpersuaded by defendant's contention that there was insufficient evidence of his commission of the crime because his...
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