People v. Stewart

• Decision Date: 21 July 2005
• Docket Number: 13976.
• Citation: 2005 NY Slip Op 06048,798 N.Y.S.2d 570,20 A.D.3d 769
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. CHARLES A. STEWART, Appellant.
• Court: New York Supreme Court — Appellate Division

20 A.D.3d 769

798 N.Y.S.2d 570

2005 NY Slip Op 06048

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. CHARLES A. STEWART, Appellant.

13976.

Appellate Division of the Supreme Court of the State of New York, Third Department.

July 21, 2005.

Appeal from a judgment of the County Court of Cortland County (Smith, J.), rendered February 25, 2002, upon a verdict convicting defendant of the crimes of sexual abuse in the first degree, rape in the first degree (two counts), sodomy in the first degree (two counts) and endangering the welfare of a child.

Crew III, J.

As the result of incidents that occurred on April 22, 2000, defendant was indicted and charged with two counts of rape in the first degree, two counts of sodomy in the first degree, sexual abuse in the first degree and endangering the welfare of a child. Following a jury trial, at which the nine-year-old victim testified, defendant was convicted as charged and sentenced to an aggregate term of 14 years in prison. Defendant now appeals.

Initially, we reject defendant's contention that the verdict was unsupported by legally sufficient evidence and was against the weight of the evidence. In that regard, defendant places great emphasis on the victim's recollection of the events, highlighting various inconsistencies in her testimony. Initially, we note that the cited inconsistencies are irrelevant to the material elements of the crimes with which defendant was charged. We also note that "it is not uncommon for young children to be uncertain and even inconsistent in their trial testimony" (People v Raymo, 19 AD3d 727, 728 [2005]). In the final analysis, the inconsistencies complained of by defendant merely presented a credibility issue for the jury, which was resolved in favor of the victim.

We do, however, find merit in defendant's contention that County Court erred in failing to grant his motion for a mistrial after the prosecution, on its direct case, elicited evidence that defendant refused to talk with a Cortland County Sheriff's Lieutenant about the incident in question. It is axiomatic that the People may not use a defendant's silence against him or her on their direct case (see People v Conyers, 49 NY2d 174, 177 [1980], vacated on other grounds 449 US 809 [1980], adhered to on remand 52 NY2d 454 [1981]). We further are of the view that the error here is not harmless (see People v Crimmins, 36 NY2d 230 [1975]), because the only evidence of defendant's implication in the charged crimes was the testimony of the nine-year-old victim. There was no medical evidence that the victim exhibited signs of penetration or other trauma, and the rape kit analysis failed to provide accusatory DNA evidence, semen or spermicidal lubricant. Quite clearly, the quantum and nature of the proof at bar does not overwhelmingly evince defendant's guilt, and we simply cannot say that there is no reasonable possibility that the error might have contributed to defendant's conviction (see id. at...