PEOPLE v. GODSENT (2025)

Judgment, Supreme Court, New York County (Ann E. Scherzer, J.), rendered March 21, 2023, convicting defendant, after a jury trial, of sexual abuse in the third degree, and sentencing him to time served, unanimously affirmed.  Order, same court and Justice, entered on March 21, 2023, which adjudicated defendant a level three offender pursuant to the Sex Offender Registration Act (Correction Law art 6–C), unanimously affirmed, without costs.

The verdict was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007];  People v. Baque, ––– N.Y.3d ––––, –––– – ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2024 N.Y. Slip Op. 05244, *2–3 [2024]).  There is no basis for rejecting the jury's credibility determinations.  The complainant's testimony that defendant entered her apartment after midnight and forcefully grabbed her breasts and kissed her, despite her pleas for him to stop and leave, demonstrated that he subjected her to sexual contact without her consent (see Penal Law §§ 130.00[3], 130.55).  Her account of the incident was corroborated by other evidence, including surveillance video footage and prompt outcry testimony (see People v. McDaniel, 81 N.Y.2d 10, 16–17, 595 N.Y.S.2d 364, 611 N.E.2d 265 [1993]).

The court providently exercised its discretion when it denied defendant's request for a missing witness charge for complainant's ex-partner and father of her child, whom she briefly called before reporting the sexual assault to a friend and to building security (see People v. Gonzalez, 68 N.Y.2d 424, 428, 509 N.Y.S.2d 796, 502 N.E.2d 583 [1986]).  The court properly concluded that the father's potential testimony regarding the complainant's phone call would be cumulative to the testimony of the two other prompt outcry witnesses and otherwise constituted inadmissible hearsay (see People v. Flores, 13 A.D.3d 251, 252, 785 N.Y.S.2d 919 [1st Dept. 2004], lv denied 4 N.Y.3d 886, 798 N.Y.S.2d 731, 831 N.E.2d 976 [2005];  People v. Small, 201 A.D.2d 315, 316, 607 N.Y.S.2d 291 [1st Dept. 1994], lv denied 83 N.Y.2d 876, 613 N.Y.S.2d 137, 635 N.E.2d 306 [1994]).

Although the court should have granted defendant's request to charge the jury to consider whether any witness had a motive to lie, which was part of the CJI charge (see CJI2d[NY] Credibility—Motive), any error was harmless, and reversal is therefore unwarranted.  The court's instructions provided criteria for the jurors to evaluate a witness's credibility, including whether the witness had “bias, hostility, or some other attitude that affected the truthfulness of that witness’[s] testimony,” “any interest in the outcome of the case,” or whether the witness “intentionally testified falsely as to any material fact.”  Thus, the jury charge adequately conveyed the appropriate standards, including “the need to scrutinize [the witness's] testimony with care” (People v. Inniss, 83 N.Y.2d 653, 659, 612 N.Y.S.2d 360, 634 N.E.2d 961 [1994];  People v. Williams, 174 A.D.2d 494, 495, 571 N.Y.S.2d 272 [1st Dept. 1991], lv denied 78 N.Y.2d 1015, 575 N.Y.S.2d 823, 581 N.E.2d 1069 [1991]).

The court also providently exercised its discretion in ruling that cross-examining the complainant about a Notice of Claim form she completed, seeking monetary damages and alleging that the Department of Homeless Services which ran the shelter where the incident occurred, was negligent, would open the door for the People to ask the complainant about her motivation for filing the Notice of Claim, namely, that the shelter had allowed defendant, a registered sex offender to live there (see People v. Melendez, 55 N.Y.2d 445, 451, 449 N.Y.S.2d 946, 434 N.E.2d 1324 [1982]).  The record reflected that the complainant's reasons for filing the Notice of Claim and otherwise attempting to publicize the incident were due to defendant's status and continued residence at the shelter, not just any potential financial incentive.

As to defendant's appeal from his sex offender adjudication, assuming without deciding, that the state and federal standards for effective assistance at a criminal trial apply to a civil sex offender proceeding (see People v. Pressley, 154 A.D.3d 530, 61 N.Y.S.3d 882 [1st Dept. 2017], lv denied 30 N.Y.3d 909, 2018 WL 358535 [2018]), defendant was not deprived of the right to the effective assistance of counsel by any error in counsel conceding the scoring of 10 points under risk factor 12 at the SORA proceeding.  Defendant did not show that he was prejudiced by his attorney's conduct.  Even after the assessment of those additional points, defendant remained a risk level one sex offender based on his score, and in any case, the application of the override for having committed a prior felony sex crime rendered him a presumptive risk level three offender (cf.  People v. Matos, 168 A.D.3d 438, 89 N.Y.S.3d 614 [1st Dept. 2019], lv denied 33 N.Y.3d 903, 2019 WL 1997380 [2018]).

Finally, the court providently declined to grant a downward departure, and we perceive no basis to reduce his risk level classification (see generally People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014]).  Although defendant contends that some of his prior sex crime convictions are remote, the record indicates that he spent a substantial portion of the past decade incarcerated, and as such, his “behavior in custody is not necessarily indicative of his future conduct while at liberty” (People v. Worrell, 221 A.D.3d 542, 544, 198 N.Y.S.3d 545 [1st Dept. 2023], lv denied 41 N.Y.3d 904, 2024 WL 1204147 [2024] [internal quotation omitted]).  Moreover, defendant did not complete a sex offender treatment program, much less demonstrate an “exceptional” response (see People v. Tugwell, 210 A.D.3d 507, 507–508, 176 N.Y.S.3d 490 [1st Dept. 2022], lv denied 39 N.Y.3d 911, 2023 WL 3066592 [2023]), and “because defendant was living with his family at the time of his offense, he failed to demonstrate that his familial support was a mitigating factor warranting a downward departure” (People v. Mills, 220 A.D.3d 548, 549, 199 N.Y.S.3d 22 [1st Dept. 2023], lv denied 41 N.Y.3d 908, 2024 WL 2278702 [2024]).  In any event, the allegedly mitigating factors cited by defendant do not outweigh his significant criminal history of sex crimes, which continued after his prior adjudication as a level three offender.