Opinion
110652
07-03-2019
The PEOPLE of the State of New York, Respondent, v. Michael N. KELSEY, Appellant.
The Law Office of Shane Hug, Troy (Shane Hug of counsel), for appellant. Gary M. Pasqua, District Attorney, Canton (Matthew L. Peabody of counsel), for respondent.
The Law Office of Shane Hug, Troy (Shane Hug of counsel), for appellant.
Gary M. Pasqua, District Attorney, Canton (Matthew L. Peabody of counsel), for respondent.
Before: Garry, P.J., Egan Jr., Lynch, Clark and Rumsey, JJ.
MEMORANDUM AND ORDER
Lynch, J. In June 2015, defendant was charged in a five-count indictment with sexual abuse in the first degree, attempted sexual abuse in the first degree, forcible touching and two counts of endangering the welfare of a child. The charges stemmed from defendant sexually touching victim A (born in 1999) and attempting to sexually touch victim B (born in 1999) while supervising a week-long boy scouts hiking trip. Following a jury trial, defendant was convicted as charged. Thereafter, defendant was sentenced to a prison term of five years followed by 10 years of postrelease supervision for his conviction of sexual abuse in the first degree and to a consecutive prison term of two years followed by 10 years of postrelease supervision for his conviction of attempted sexual abuse in the first degree, as well as to other lesser concurrent sentences. Defendant appeals.
Defendant contends that the jury verdict is not supported by legally sufficient evidence and is against the weight of the evidence. Initially, as defendant concedes, he failed to preserve his legal sufficiency claim as he did not move for a trial order of dismissal (see People v. Hawkins , 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946 [2008] ; People v. Secor , 162 A.D.3d 1411, 1412, 80 N.Y.S.3d 511 [2018], lv denied 32 N.Y.3d 941, 84 N.Y.S.3d 868, 109 N.E.3d 1168 [2018] ). "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. Werkheiser , 171 A.D.3d 1297, 1298, 98 N.Y.S.3d 345 [2019] [internal quotation marks and citations omitted]; see People v. Vega , 170 A.D.3d 1266, 1267, 95 N.Y.S.3d 620 [2019] ). "When undertaking a weight of the evidence review, we must first determine whether, based on all the credible evidence, a different finding would not have been unreasonable and then[, if not,] 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. When conducting this review, we consider the evidence in a neutral light and defer to the jury's credibility assessments" ( People v. Gill , 168 A.D.3d 1140, 1140–1141, 90 N.Y.S.3d 392 [2019] [internal quotation marks and citations omitted]; see People v. Hackett , 167 A.D.3d 1090, 1091–1092, 89 N.Y.S.3d 429 [2018] ).
The focus of defendant's argument is that the evidence failed to demonstrate that he committed the charged crimes because of inconsistencies in each victim's testimony. As relevant here, "[a] person is guilty of sexual abuse in the first degree when he or she subjects another person to sexual contact ... [w]hen the other person is incapable of consent by reason of being physically helpless" ( Penal Law § 130.65[2] ). "A person is guilty of forcible touching when such person intentionally, and for no legitimate purpose ... forcibly touches the sexual or other intimate parts of another person for the purpose of degrading or abusing such person, or for the purpose of gratifying the actor's sexual desire" ( Penal Law § 130.52[1] ). Additionally, as charged herein, "[a] person is guilty of endangering the welfare of a child when ... [h]e or she knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a child less than [17] years old" ( Penal Law § 260.10[1] ).
At trial, the two victims testified and described various acts of defendant touching and attempting to touch their penises, occurring at specific times and places. They each also described a game played during scouting trips called "padiddle," during the course of which the losing player in a round would remove an article of clothing. Each victim described the circumstances and delay in their disclosure of these incidents. They were each subject to cross-examination, and certain inconsistencies in their accounts were thus revealed. Victim B's mother testified that, after victim B had disclosed to her defendant's conduct, she contacted the police. Thereafter, at the directive of the police, she made a controlled phone call to defendant, in which he made incriminating statements with respect to both victims.
Defendant denied the allegations of both victims. Defendant testified extensively regarding the controlled phone call between himself and victim B's mother providing various explanations for his statements. On cross-examination, defendant admitted to sending a series of emails in November and December 2014 to a scout master in which he also made certain incriminating statements. Other witnesses testified as to defendant's positive reputation in the community, and two boy scout witnesses testified that they were familiar with "padiddle," but that game did not involve removal of clothing. Regarding defendant's conviction of sexual abuse in the first degree, both victims testified consistently that, while they were asleep, defendant made and attempted to make sexual contact with them, which established that the victims were physically helpless and unable to consent to such conduct (see Penal Law §§ 130.00[7] ; 130.65[2]; People v. Tucker , 149 A.D.3d 1261, 1262, 52 N.Y.S.3d 142 [2017], lv denied 29 N.Y.3d 1087, 64 N.Y.S.3d 177, 86 N.E.3d 264 [2017] ; People v. Yontz , 116 A.D.3d 1242, 1243, 983 N.Y.S.2d 694 [2014], lv denied 23 N.Y.3d 1026, 992 N.Y.S.2d 809, 16 N.E.3d 1289 [2014] ). The victims' testimonies were further corroborated by the controlled phone call between defendant and victim B's mother, in which defendant admitted to attempting to touch victim B and stated that it could have also happened with victim A, as well as the email messages sent by defendant to a scout master. Similarly, as to the forcible touching conviction, victim A's testimony that defendant sexually touched him, while defendant was sleeping next to him, established the requisite contact to support the guilty verdict (see Penal Law § 130.52[1] ; People v. Wagner , 72 A.D.3d 1196, 1197, 899 N.Y.S.2d 392 [2010], lv denied 15 N.Y.3d 779, 907 N.Y.S.2d 468, 933 N.E.2d 1061 [2010] ). The inference that defendant's sexual touching was to gratify his sexual desire is "clearly appropriate when a nonrelative causes intimate contact with a child" ( People v. Fuller , 50 A.D.3d 1171, 1175, 854 N.Y.S.2d 594 [2008] [internal quotation marks, ellipses and citations omitted], lv denied 11 N.Y.3d 788, 866 N.Y.S.2d 614, 896 N.E.2d 100 [2008] ). As for the convictions of endangering the welfare of a child, the testimony of each victim regarding defendant's sexual contact and attempted sexual contact establishes that defendant acted in a manner likely to be injurious to the physical, mental or moral welfare of the victims (see Penal Law § 260.10[1] ; People v. Toft , 156 A.D.3d 1234, 1235, 68 N.Y.S.3d 217 [2017] ). Although both victims admitted to some inconsistencies in their disclosures of the incidents, these inconsistencies were minor and did not render their testimonies "inherently unbelievable or incredible as a matter of law" ( People v. Werkheiser , 171 A.D.3d at 1301, 98 N.Y.S.3d 345 [internal quotation marks and citation omitted] ). Additionally, these issues were thoroughly explored on cross-examination 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 1090, 1092, 983 N.Y.S.2d 105 [2014] ). As such, we find that the verdict was not against the weight of the evidence (see People v. Hackett , 167 A.D.3d at 1093–1094, 89 N.Y.S.3d 429 ; People v. Van Alphen , 167 A.D.3d 1076, 1078, 89 N.Y.S.3d 445 [2018], lv denied 32 N.Y.3d 1210, 99 N.Y.S.3d 233, 122 N.E.3d 1146 [2019] ).
Defendant also claims that he was deprived of the effective assistance of counsel due to counsel's asserted pretrial and trial errors. "In general, a defendant's constitutional right to effective representation is met so long as the evidence, the law, and the circumstances of a particular case, viewed in totality, reveal that the attorney provided meaningful representation" ( People v. Hackett , 167 A.D.3d at 1095, 89 N.Y.S.3d 429 [internal quotation marks, brackets, ellipses and citations omitted]; see People v. Rawlinson , 170 A.D.3d 1425, 1430, 97 N.Y.S.3d 319 [2019] ). The burden is on the defendant to "demonstrate the absence of strategic or other legitimate explanations for counsel's choices" ( People v. Thiel , 134 A.D.3d 1237, 1240, 21 N.Y.S.3d 745 [2015] [internal quotation marks, brackets and citations omitted], lv denied 27 N.Y.3d 1156, 39 N.Y.S.3d 389, 62 N.E.3d 129 [2016] ; see People v. Lewis , 138 A.D.3d 1346, 1348, 30 N.Y.S.3d 387 [2016], lv denied 28 N.Y.3d 1073, 47 N.Y.S.3d 232, 69 N.E.3d 1028 [2016] ). Defendant first contends that defense counsel improperly waived a Huntley hearing regarding defendant's inculpatory statements during the controlled phone call. The record indicates, however, that defendant had "extensive discussions" with defense counsel regarding the controlled call, and defendant instructed counsel to waive the hearing (see People v. Henriquez , 3 N.Y.3d 210, 217, 785 N.Y.S.2d 384, 818 N.E.2d 1125 [2004] ; People v. Davis , 308 A.D.2d 343, 345, 764 N.Y.S.2d 184 [2003], lv denied 1 N.Y.3d 570, 775 N.Y.S.2d 787, 807 N.E.2d 900 [2003] ). Further, the record does not contain any evidence to show that defense counsel's waiver of a Huntley hearing was not a strategic decision in light of his trial strategy (see People v. Umana , 143 A.D.3d 1174, 1175, 40 N.Y.S.3d 596 [2016], lv denied 29 N.Y.3d 1037, 62 N.Y.S.3d 306, 84 N.E.3d 978 [2017] ; People v. Thiel , 134 A.D.3d at 1240–1241, 21 N.Y.S.3d 745 ). To the extent that defendant complains that his counsel failed to object to the introduction of his statements during the controlled call as involuntarily, counsel cannot be faulted for not making an objection that would have had little chance of success (see People v. Caban , 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005] ; People v. Brown , 169 A.D.3d 1258, 1260, 94 N.Y.S.3d 729 [2019] ).
Defendant further contends that his counsel was ineffective in failing to object to the introduction of defendant's prior bad acts. However, such evidence was admissible to show defendant's intent and motive, provide necessary background and complete the victims' narratives, and the record shows that County Court balanced the probative value of this testimony against its prejudicial effect (see People v. Sorrell , 108 A.D.3d 787, 792, 969 N.Y.S.2d 198 [2013], lv denied 23 N.Y.3d 1025, 992 N.Y.S.2d 808, 16 N.E.3d 1288 [2014] ; People v. Jones , 101 A.D.3d 1482, 1483, 956 N.Y.S.2d 703 [2012], lv denied 21 N.Y.3d 1017, 971 N.Y.S.2d 499, 994 N.E.2d 395 [2013] ). Similarly, certain testimony regarding the victims' disclosures of sexual conduct was relevant to explain how the victims eventually disclosed the sexual conduct and how the investigation started (see People v. Ludwig , 24 N.Y.3d 221, 231, 997 N.Y.S.2d 351, 21 N.E.3d 1012 [2014] ; People v. Gross , 118 A.D.3d 1383, 1384, 988 N.Y.S.2d 733 [2014], affd 26 N.Y.3d 689, 27 N.Y.S.3d 459, 47 N.E.3d 738 [2016] ). In addition, defendant failed to show that defense counsel's failure to object to certain undesirable testimony was not a purposeful choice made to avoid drawing further attention to it (see People v. Rodriguez , 135 A.D.3d 1181, 1185–1186, 23 N.Y.S.3d 692 [2016], lv denied 28 N.Y.3d 936, 40 N.Y.S.3d 364, 63 N.E.3d 84 [2016] ). We also do not find that counsel was ineffective in failing to move for a trial order of dismissal (see People v. LaDuke , 140 A.D.3d 1467, 1471, 34 N.Y.S.3d 688 [2016] ). Overall, the record reveals that defense counsel pursued a rational trial strategy, presented cogent opening and closing statements, vigorously cross-examined the victims and the People's other witnesses and called witnesses for the defense, thus providing defendant with meaningful representation (see People v. LaDuke , 140 A.D.3d at 1471–1472, 34 N.Y.S.3d 688 ; People v. Echavarria , 53 A.D.3d 859, 864, 861 N.Y.S.2d 510 [2008], lv denied 11 N.Y.3d 832, 868 N.Y.S.2d 606, 897 N.E.2d 1090 [2008] ; People v. Fuller , 50 A.D.3d at 1176, 854 N.Y.S.2d 594 ; People v. Wright , 5 A.D.3d 873, 877, 773 N.Y.S.2d 486 [2004], lv denied 3 N.Y.3d 651, 782 N.Y.S.2d 422, 816 N.E.2d 212 [2004] ).
Finally, we are unpersuaded that defendant's sentence, which fell within the statutory parameters, was harsh or excessive. In addition to considering letters from various community members – who asked for leniency due to their view of defendant's character and his past good work – County Court also considered the trial testimony, the presentence report and the victim impact statements. Given defendant's denial of responsibility for his actions, his exploitation of a position of trust and the devastating effect on the victims, we find no abuse of discretion or extraordinary circumstance warranting a reduction of the sentence in the interest of justice (see People v. Horton , 173 A.D.3d 1338, 1341–42, 104 N.Y.S.3d 363, 2019 N.Y. Slip Op. 04782, *3 [2019] ; People v. Jaeger , 96 A.D.3d 1172, 1175, 946 N.Y.S.2d 680 [2012], lv denied 19 N.Y.3d 997, 951 N.Y.S.2d 474, 975 N.E.2d 920 [2012] ; People v. Bartolillo , 47 A.D.3d 1122, 1122, 849 N.Y.S.2d 718 [2008] ). Defendant's remaining contentions, to the extent not specifically addressed herein, have been examined and found to be lacking in merit.
Garry, P.J., Egan Jr., Clark and Rumsey, JJ., concur.
ORDERED that the judgment is affirmed.