People v. Werkheiser

• Decision Date: 11 April 2019
• Docket Number: 108317,110371
• Citation: 171 A.D.3d 1297,98 N.Y.S.3d 345
• Parties: The PEOPLE of the State of New York, Respondent, v. Julie K. WERKHEISER, Appellant.
• Court: New York Supreme Court — Appellate Division

171 A.D.3d 1297

98 N.Y.S.3d 345

The PEOPLE of the State of New York, Respondent,

v.Julie K. WERKHEISER, Appellant.

108317

110371

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

Calendar Date: February 14, 2019

Decided and Entered: April 11, 2019

Pamela B. Bleiwas, Ithaca, for appellant.

Kirk O. Martin, District Attorney, Owego (Cheryl A. Mancini of counsel), for respondent.

Before: Clark, J.P., Mulvey, Aarons, Rumsey and Pritzker, JJ.

MEMORANDUM AND ORDER

Pritzker, J.

Following a jury trial, defendant was found guilty of two counts of predatory sexual assault against a child stemming from the sexual abuse of victim A (born in 1998) and victim B (born in 1999) from July 2006 to November 2007 at the dance studio where defendant was an instructor in the Village of Waverly, Tioga County.¹ Defendant was sentenced to a prison term of 11 years to life for each count, with the sentences to run concurrently. Defendant subsequently filed a pro se motion to vacate the judgment of conviction pursuant to CPL 440.10 on the ground that new evidence had been discovered since the entry of judgment. County Court denied the motion without a hearing. Defendant now appeals from the judgment of conviction and, by permission, from the denial of her CPL 440.10 motion. We affirm.

Initially, as defendant concedes, her challenge to the legal sufficiency of the evidence is not preserved given that trial counsel's motion for a trial order of dismissal at the close of the People's proof was not "specifically directed at the errors being urged on appeal" ( People v. Cruz , 131 A.D.3d 724, 724, 14 N.Y.S.3d 804 [2015] [internal quotation marks, brackets and citations omitted], lv denied 26 N.Y.3d 1087, 23 N.Y.S.3d 644, 44 N.E.3d 942 [2015] ; see People v. Stahl , 53 N.Y.2d 1048, 1050, 442 N.Y.S.2d 488, 425 N.E.2d 876 [1981] ). "However, a weight of the evidence challenge, which bears no preservation requirement, also requires consideration of the adequacy of the evidence as to each element of the crimes" ( People v. Perillo , 144 A.D.3d 1399, 1400, 41 N.Y.S.3d 776 [2016] [internal quotation marks and citations omitted], lvs denied 29 N.Y.3d 948, 951, 54 N.Y.S.3d 379, 382, 76 N.E.3d 1082, 1085 [2017]; accord People v. Cruz , 131 A.D.3d at 725, 14 N.Y.S.3d 804 ). "Under a weight of the evidence analysis, if a different result would not have been unreasonable, this Court must then weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony" ( People v. Fournier , 137 A.D.3d 1318, 1319, 26 N.Y.S.3d 796 [2016] [internal quotation marks, brackets and citations omitted], lv denied 28 N.Y.3d 929, 40 N.Y.S.3d 357, 63 N.E.3d 77 [2016] ; see People v. LaDuke , 140 A.D.3d 1467, 1468 [2016] ).

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 commits the crime 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 ... oral sexual conduct, ... with a child less than [13] years old" ( Penal Law § 130.75[1][b] ).

Victim A, who was 17 years old at the time of trial, testified that she was born in 1998 and was eight to nine years old during the sexual conduct. From July 2006 to November 2007, victim A took dance lessons almost daily at the studio where defendant was an instructor. Victim A testified that, when the lessons were over and the other students had gone, defendant would take victim A into a closet located on the lower level of the studio and she would stick her fingers and her tongue into victim A's vagina. Victim A testified that the same sexual conduct occurred in a storage room in the upstairs of the dance studio. Victim A further testified that she did not remember how many times the sexual conduct occurred in the closet, stating that it happened "[a] lot" and that there was not a month during which it did not happen from July 2006 to November 2007. Victim A also explained that she watched defendant subject victim B to the same sexual conduct multiple times from July 2006 to November 2007. Victim A testified that during the sexual conduct that happened both to her and to victim B, defendant sang lullabies with words in a different language. Victim A also explained that she does not have a good relationship with victim B, and that they "never talked about" the sexual abuse by defendant.

Victim A further explained that she did not tell anyone about the sexual conduct because she believed that it was her fault and, moreover, defendant told victim A that if she told anyone, defendant would kill her. Victim A acknowledged that she previously told a Child Protective Services worker that she did not witness defendant touch anyone and was not sure if defendant did anything to her. Victim A explained that she did not say anything about the sexual abuse until the fall of 2013 because she did not remember it. Victim A described two specific events that triggered her memory of the sexual abuse.

Victim B, who was 16 years old at the time of trial, testified that she was born in 1999. Victim B explained that she attended the studio where defendant worked and, from July 2006 to November 2007, defendant sexually abused her in an upstairs room at the dance studio by touching victim B's chest and putting her fingers and tongue in victim B's vagina. Victim B explained that the abuse also occurred downstairs in the dance studio. Victim B testified that this sexual conduct occurred more than two times per month from July 2006 to November 2007. Victim B recalled that defendant sang during the sexual conduct and, that if victim B cried, defendant would tell her to "shut up" and that she would send someone after her. Victim B testified that she first told her stepmother about the sexual abuse but that she did not remember when. She also testified that she and victim A were not abused together, but that she had a feeling, although she never saw it, that victim A was abused. However, she did observe victim A come out of the bathroom area upstairs crying on more than two occasions. Victim B acknowledged that when she talked to other people about the sexual abuse, she stated that it always happened in the same room and that defendant took off her clothes, although at trial, she testified that either she or defendant took off her clothes and that she had no knowledge of defendant abusing anyone else at the dance studio. Also, victim B acknowledged that, during prior testimony, she stated that defendant did not threaten her.

Stephan Perkowski, a licensed clinical social worker, testified about Child Sexual Abuse Accommodation Syndrome and certain characteristics that are commonly observed in cases of child sexual abuse. Perkowski also testified about delayed disclosure, specifically explaining that the story of a sexually abused child generally comes in "piece-meal" and rarely comes out in full the first time the child is interviewed. Perkowski explained that many factors prompt delayed disclosure, including proximity or lack of proximity to the alleged offender, coming to terms with what happened to the child and feeling less pressure about sexual abuse. He explained that threats also play a role in delayed disclosure because the younger the child is, the more likely he or she is to believe that the threat is real and can happen. Kevin Antshel, an associate professor of psychiatry, testified about phenylketonuria (hereafter PKU), a medical condition that affects both victim A and victim B. According to Antshel, PKU affects working memory but not long term memory. Defendant's sister testified that defendant was born in 1976. Defendant testified that victims A and B took dance lessons at her dance studio but denied any sexual abuse or threats. Three witnesses, all of whom were involved with the dance studio and knew defendant and both victims, testified that they never observed any sexual conduct between defendant and the victims.

While some of the victims' testimonies were inconsistent, both with one another and with their own prior statements, "it is not uncommon for young children to be uncertain and even inconsistent in their trial testimony" ( People v. Russell , 116 A.D.3d 1090, 1092, 983 N.Y.S.2d 105 [2014] [internal quotation marks and citations omitted] ). Nor do we find that these inconsistencies render the victims' testimonies "inherently unbelievable or incredible as a matter of law" ( id. at 1092, 983 N.Y.S.2d 105 ; see People v. Beauharnois , 64 A.D.3d 996, 999, 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] ). Also, both victims testified that their delay in reporting was due to threats and lack of memory (see People v. Reynolds , 81 A.D.3d 1166, 1166–1167, 917 N.Y.S.2d 401 [2011], lv denied 16 N.Y.3d 898, 926 N.Y.S.2d 34, 949 N.E.2d 982 [2011] ). Additionally, these issues were fully revealed at trial and explored during defendant's cross-examination of both victims and presented credibility questions to be resolved by the jury (see People v. Chaneyfield , 157 A.D.3d 996, 1000, 69 N.Y.S.3d 144 [2018], lv denied 31 N.Y.3d 1012, 78 N.Y.S.3d 282, 102 N.E.3d 1063 [2018] ; People v. Russell , 116 A.D.3d at 1092, 983 N.Y.S.2d 105 ). Therefore, viewing the evidence in a neutral light and according great deference to the jury's credibility determinations given their opportunity to view the victims' demeanors and assess their credibility in light of these concerns, we find the verdict to be in accord with the weight of the evidence (see People v. Chaneyfield , 157 A.D.3d at 1000, 69 N.Y.S.3d...