People v. Van Alphen

• Decision Date: 06 December 2018
• Docket Number: 108926
• Citation: 167 A.D.3d 1076,89 N.Y.S.3d 445
• Parties: The PEOPLE of the State of New York, Respondent, v. Jeanine VAN ALPHEN, Appellant.
• Court: New York Supreme Court — Appellate Division

167 A.D.3d 1076
89 N.Y.S.3d 445

The PEOPLE of the State of New York, Respondent,
v.
Jeanine VAN ALPHEN, Appellant.

108926

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

Calendar Date: October 12, 2018
Decided and Entered: December 6, 2018

89 N.Y.S.3d 446

Theodore J. Stein, Woodstock, for appellant.

Paul Czajka, District Attorney, Hudson (James Carlucci of counsel), for respondent.

Before: Garry, P.J., Devine, Clark, Aarons and Pritzker, JJ.

MEMORANDUM AND ORDER

Devine, J.

Appeal from a judgment of the County Court of Columbia County (Koweek, J.), rendered October 18, 2016, upon a verdict convicting defendant of the crime of predatory sexual assault against a child (two counts).

Defendant and three codefendants were charged in an indictment with offenses stemming from their alleged sexual abuse of multiple children. The relevant charges for our purposes were counts 6 and 7, charging defendant with the crime of predatory sexual assault against a child, and counts 20 and 21, charging defendant with the crime of course of sexual conduct against a child in the first degree, relating to her conduct toward victim A (born in 2004) and victim B (born in 2002) between June 2009 and February 2011. Following a jury trial, defendant was found guilty of those counts. Prior to imposing sentence, County Court dismissed counts 20 and 21 as lesser included offenses of counts 6 and 7, respectively (see People v. Beauharnois, 64 A.D.3d 996, 999–1001, 882 N.Y.S.2d 589 [2009], lv denied 13 N.Y.3d 834, 890 N.Y.S.2d 450, 918 N.E.2d 965 [2009] ). County Court then sentenced defendant to 25 years to life in prison on count 6 as well as count 7, the sentences to run consecutively. Defendant now appeals.

Defendant's contention that the verdict was unsupported by legally sufficient evidence is not preserved for our review given her failure to advance the specific grounds she now relies upon in her trial motion to dismiss (see People v. Norman, 154 A.D.3d 1185, 1186, 63 N.Y.S.3d 136 [2017], lv denied 31 N.Y.3d 986, 77 N.Y.S.3d 663, 102 N.E.3d 440 [2018] ; People v. Novak, 148 A.D.3d 1352, 1353, 50 N.Y.S.3d 577 [2017], lv denied

89 N.Y.S.3d 447

29 N.Y.3d 1084, 64 N.Y.S.3d 174, 86 N.E.3d 261 [2017] ). Nevertheless, defendant also argues that her conviction was against the weight of the evidence, which obliges us to determine whether the elements of the crime were proven beyond a reasonable doubt (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ; People v. Hahn, 159 A.D.3d 1062, 1063, 71 N.Y.S.3d 731 [2018], lv denied 31 N.Y.3d 1117, 81 N.Y.S.3d 377, 106 N.E.3d 760 [2018] ; People v. Norman, 154 A.D.3d at 1186, 63 N.Y.S.3d 136 ). The crime for which defendant was convicted was predatory sexual assault against a child and is committed, as is relevant here, when a person over the age of 18 "commits the crime of rape in the first degree, ... [or] course of sexual conduct against a child in the first degree ... and the victim is less than [13] years old" ( Penal Law § 130.96 ).

The proof at trial reflected that defendant lived with victim A, victim B and other children until February 2011. Victim A was six years old in February 2011 and acknowledged at trial that he did not remember the period from June 2009 to February 2011 well, but did recall defendant and the codefendants forcing him to engage in sex acts with victim B and a third child. He did not accuse defendant of having performed sex acts on him, but the third child, who was very young at the time of the alleged incidents, recounted in unsworn testimony that she saw defendant have sex with victims A and B. A more detailed account was offered by victim B, who was eight years old in February 2011. He testified to multiple instances during the charged period in which defendant fondled him and victim B, inserted objects into their anuses, placed their penises into defendant's vagina and made them insert objects into it. Victim A and victim B agreed that the sex acts were recorded, and victim B testified that the acts occurred frequently and did not stop until he and victim A were separated from defendant in February 2011.

Defendant points to the differing accounts of the children as to the nature and extent of her conduct, accounts that shifted from their grand jury testimony and, to some degree, during their trial testimony. "[I]t is not uncommon for young children to be uncertain and even inconsistent in their trial testimony," however, and that fact does not render their testimony incredible as a matter of law ( People v. Raymo, 19 A.D.3d 727, 728, 796 N.Y.S.2d 448 [2005], lv denied 5 N.Y.3d 793, 801 N.Y.S.2d 814, 835 N.E.2d 674 [2005] ; see People v. St. Ives, 145 A.D.3d 1185, 1187, 43 N.Y.S.3d 187 [2016], lv denied 29 N.Y.3d 1036, 62 N.Y.S.3d 305, 84...