PEOPLE v. JONES III (2026)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: In this prosecution arising from allegations that defendant sexually abused a female child (victim) over a period of years during the victim's childhood, defendant appeals from a judgment convicting him, upon a jury verdict, of predatory sexual assault against a child (Penal Law former § 130.96), criminal sexual act in the third degree (former § 130.40 [2]), rape in the third degree (former § 130.25 [2]), sexual abuse in the third degree (§ 130.55), use of a child in a sexual performance as a sexually motivated felony (§§ 130.91, 263.05), promoting a sexual performance by a child as a sexually motivated felony (§§ 130.91, 263.15), and endangering the welfare of a child (§ 260.10 [1]). We affirm.

Defendant contends that the indictment was “jurisdictionally defective” because the 61/212-year time period set forth in the count alleging predatory sexual assault against a child is excessive. We conclude that defendant's contention is not properly characterized as raising a jurisdictional defect; instead, defendant's contention constitutes a challenge to the factual sufficiency of the allegations (see People v. Carter, 147 A.D.3d 1514, 1515, 47 N.Y.S.3d 614 [4th Dept. 2017], lv denied 29 N.Y.3d 1030, 62 N.Y.S.3d 298, 84 N.E.3d 970 [2017]; see generally People v. Iannone, 45 N.Y.2d 589, 600-601, 412 N.Y.S.2d 110, 384 N.E.2d 656 [1978]). That challenge is not preserved for our review inasmuch as that part of defendant's omnibus motion seeking to dismiss the indictment constituted only a general motion, which did not advance the specific claim now raised on appeal (see People v. Spears, 125 A.D.3d 1401, 1402, 3 N.Y.S.3d 535 [4th Dept. 2015], lv denied 25 N.Y.3d 1172, 15 N.Y.S.3d 303, 36 N.E.3d 106 [2015]; People v. Carey, 92 A.D.3d 1224, 1224, 937 N.Y.S.2d 809 [4th Dept. 2012], lv denied 18 N.Y.3d 992, 945 N.Y.S.2d 647, 968 N.E.2d 1003 [2012]), and County Court did not “expressly decide[ ] the question raised on appeal” in response to defendant's motion (CPL 470.05 [2]). We decline to exercise our power to address that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]; Carey, 92 A.D.3d at 1224-1225, 937 N.Y.S.2d 809).

Defendant also contends that the court should have suppressed any evidence that was seized from his residence during the execution of a search warrant issued for that property. By failing to seek a ruling on that part of his omnibus motion challenging the search warrant for the residence and by failing to object to any admission of the seized evidence at trial, defendant abandoned his challenge to that search warrant (see People v. Smith, 147 A.D.3d 1527, 1528, 48 N.Y.S.3d 563 [4th Dept. 2017], lv denied 29 N.Y.3d 1087, 64 N.Y.S.3d 176, 86 N.E.3d 263 [2017]; People v. Mulligan, 118 A.D.3d 1372, 1376, 988 N.Y.S.2d 354 [4th Dept. 2014], lv denied 25 N.Y.3d 1075, 12 N.Y.S.3d 626, 34 N.E.3d 377 [2015]). Defendant's related contention that a search warrant for a social media account was issued without probable cause and was overbroad is not preserved for our review inasmuch as defendant failed to raise that contention in his motion papers or before the suppression court (see People v. Navarro, 158 A.D.3d 1242, 1243-1244, 71 N.Y.S.3d 297 [4th Dept. 2018], lv denied 31 N.Y.3d 1120, 81 N.Y.S.3d 379, 106 N.E.3d 762 [2018]; People v. Woodring, 48 A.D.3d 1273, 1275, 850 N.Y.S.2d 809 [4th Dept. 2008], lv denied 10 N.Y.3d 846, 859 N.Y.S.2d 404, 889 N.E.2d 91 [2008]). We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]; People v. Myles, 216 A.D.3d 1419, 1421-1422, 188 N.Y.S.3d 346 [4th Dept. 2023], lv denied 40 N.Y.3d 936, 194 N.Y.S.3d 773, 215 N.E.3d 1214 [2023]; Woodring, 48 A.D.3d at 1275, 850 N.Y.S.2d 809).

Defendant further contends that the court erred in admitting in evidence, over his foundation objection, two photographs depicting social media messages sent to the victim, asserting that the People failed to properly authenticate that the messages were sent by defendant. We reject that contention. Although there was no Internet service provider or other technical evidence regarding the social media messages, the messages were properly authenticated, through circumstantial evidence, as having been sent by defendant (see People v. McKoy, 217 A.D.3d 1396, 1397, 190 N.Y.S.3d 745 [4th Dept. 2023], lv denied 40 N.Y.3d 998, 197 N.Y.S.3d 116, 219 N.E.3d 877 [2023]; People v. Pierre, 41 A.D.3d 289, 291, 838 N.Y.S.2d 546 [1st Dept. 2007], lv denied 9 N.Y.3d 880, 842 N.Y.S.2d 792, 874 N.E.2d 759 [2007]). The testimony of the victim and her mother, the latter of whom photographed the messages after she was shown them on the victim's tablet, established that defendant's social media account username was saved on the victim's tablet under his nickname in relation to her and that defendant's personalized avatar appeared with the messages (see McKoy, 217 A.D.3d at 1397, 190 N.Y.S.3d 745; People v. Kingsberry, 194 A.D.3d 843, 844, 143 N.Y.S.3d 887 [2d Dept. 2021], lv denied 37 N.Y.3d 993, 152 N.Y.S.3d 425, 174 N.E.3d 365 [2021]; People v. Serrano, 173 A.D.3d 1484, 1488, 103 N.Y.S.3d 648 [3d Dept. 2019], lv denied 34 N.Y.3d 937, 109 N.Y.S.3d 728, 133 N.E.3d 432 [2019]). The identity of the sender of the messages was also “sufficiently authenticated by the content of the ․ messages” (People v. Mencel, 206 A.D.3d 1550, 1552, 168 N.Y.S.3d 774 [4th Dept. 2022], lv denied 38 N.Y.3d 1152, 174 N.Y.S.3d 30, 194 N.E.3d 737 [2022]; see McKoy, 217 A.D.3d at 1397, 190 N.Y.S.3d 745; People v. Green, 107 A.D.3d 915, 916, 967 N.Y.S.2d 753 [2d Dept. 2013], lv denied 22 N.Y.3d 1088, 981 N.Y.S.2d 673, 4 N.E.3d 975 [2014]; Pierre, 41 A.D.3d at 291, 838 N.Y.S.2d 546). Moreover, “ ‘[t]he credibility of the authenticating witness[es] goes to the weight to be accorded the evidence, not to its admissibility’ ” and, to the extent that defendant suggests that someone else could have sent the messages from the social media account associated with him, “the likelihood of that scenario ‘presented a factual issue for the jury to resolve’ ” (McKoy, 217 A.D.3d at 1397-1398, 190 N.Y.S.3d 745; see People v. Tucker, 200 A.D.3d 1584, 1586, 159 N.Y.S.3d 283 [4th Dept. 2021], lv denied 38 N.Y.3d 954, 165 N.Y.S.3d 456, 185 N.E.3d 977 [2022]; Serrano, 173 A.D.3d at 1488, 103 N.Y.S.3d 648). To the extent that defendant contends that the People failed to establish a proper foundation for the social media messages on other grounds, we conclude that defendant's contention is not preserved for our review inasmuch as defendant failed to object to the admission of the messages on those grounds (see People v. Minutolo, 215 A.D.3d 1260, 1260-1261, 188 N.Y.S.3d 297 [4th Dept. 2023], lv denied 40 N.Y.3d 1093, 204 N.Y.S.3d 801, 228 N.E.3d 614 [2024]; People v. Byrd, 214 A.D.3d 1321, 1323, 185 N.Y.S.3d 847 [4th Dept. 2023], lv denied 40 N.Y.3d 927, 192 N.Y.S.3d 508, 213 N.E.3d 650 [2023]), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]).

We reject defendant's contention that the court erred in permitting the testimony of two witnesses under the prompt outcry exception to the hearsay rule (see People v. Stuckey, 50 A.D.3d 447, 448, 855 N.Y.S.2d 141 [1st Dept. 2008], lv denied 11 N.Y.3d 742, 864 N.Y.S.2d 400, 894 N.E.2d 664 [2008]; People v. Rodriguez, 284 A.D.2d 952, 952, 728 N.Y.S.2d 597 [4th Dept. 2001], lv denied 96 N.Y.2d 924, 732 N.Y.S.2d 641, 758 N.E.2d 667 [2001]; see generally People v. McDaniel, 81 N.Y.2d 10, 16-18, 595 N.Y.S.2d 364, 611 N.E.2d 265 [1993]). We also reject defendant's contention that the court erred in permitting the People to introduce Molineux evidence related to defendant's prior acts of domestic violence against the victim's mother (see People v. Cuadrado, 227 A.D.3d 1174, 1180-1181, 211 N.Y.S.3d 557 [3d Dept. 2024], lv denied 42 N.Y.3d 969, 219 N.Y.S.3d 618, 244 N.E.3d 1077 [2024]).

Defendant further asserts that the court erroneously precluded him from cross-examining the victim about a prior sexually transmitted infection diagnosis, thereby depriving him of his rights to confront witnesses and present a defense. Although the People initially moved in limine to preclude such evidence, the court reserved decision after argument and indicated that it would not rule “unless and until the issue becomes ripe” during trial. Defendant, however, did not object to the court's course of action, nor did he seek to elicit or introduce such evidence at trial, and we thus conclude that defendant's contention is not preserved for our review (see People v. Cruz-Rivera, 174 A.D.3d 1512, 1513, 105 N.Y.S.3d 249 [4th Dept. 2019], lv denied 34 N.Y.3d 1127, 118 N.Y.S.3d 539, 141 N.E.3d 495 [2020]; People v. Billip, 65 A.D.3d 430, 430-431, 883 N.Y.S.2d 528 [1st Dept. 2009], lv denied 13 N.Y.3d 834, 890 N.Y.S.2d 450, 918 N.E.2d 965 [2009]). We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]; Billip, 65 A.D.3d at 431, 883 N.Y.S.2d 528).

Next, defendant contends that the evidence is legally insufficient to support the conviction with respect to the counts of use of a child in a sexual performance as a sexually motivated felony and promoting a sexual performance by a child as a sexually motivated felony because the People were unable to produce the video on which those counts were predicated. Defendant failed to preserve that contention for our review because he made only a general motion for a trial order of dismissal (see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995]; People v. Schultz, 266 A.D.2d 919, 919, 698 N.Y.S.2d 180 [4th Dept. 1999], lv denied 94 N.Y.2d 906, 707 N.Y.S.2d 391, 728 N.E.2d 990 [2000]; People v. Farbman, 231 A.D.2d 588, 588, 647 N.Y.S.2d 790 [2d Dept. 1996], lv denied 89 N.Y.2d 863, 653 N.Y.S.2d 286, 675 N.E.2d 1239 [1996]). In any event, that contention lacks merit. Viewing the evidence in the light most favorable to the People (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 [1983]), including the victim's testimony that defendant used his cell phone to record a video of her performing oral sex on him, a photograph of a social media message sent by defendant to the victim in which defendant referred to that footage, and the evidence that defendant saved the video to a social media application designed to hide videos in an encrypted, password-protected folder, we conclude that the evidence is legally sufficient to support the conviction with respect to the aforementioned counts (see People v. Burke, 287 A.D.2d 512, 514, 731 N.Y.S.2d 467 [2d Dept. 2001], lv denied 97 N.Y.2d 679, 738 N.Y.S.2d 294, 764 N.E.2d 398 [2001]; Farbman, 231 A.D.2d at 588, 647 N.Y.S.2d 790; see also People v. Keane, 240 A.D.3d 1424, 1426, 238 N.Y.S.3d 848 [4th Dept. 2025], lv denied 44 N.Y.3d 993, 242 N.Y.S.3d 223, 269 N.E.3d 209 [2025], reconsideration denied 44 N.Y.3d 1028, 246 N.Y.S.3d 314, 272 N.E.3d 1151 [2025]).

With respect to defendant's contention that the verdict is against the weight of the evidence, we conclude at the outset that “a different verdict would not have been unreasonable inasmuch as this case rests largely on the jury's credibility findings with respect to the testimony of the victim and the People's other witnesses” (People v. Harrell, 235 A.D.3d 1294, 1297, 226 N.Y.S.3d 817 [4th Dept. 2025], lv denied 43 N.Y.3d 1009, 234 N.Y.S.3d 825, 261 N.E.3d 960 [2025] [internal quotation marks omitted]; see People v. Roman, 107 A.D.3d 1441, 1442, 967 N.Y.S.2d 791 [4th Dept. 2013], lv denied 21 N.Y.3d 1045, 972 N.Y.S.2d 542, 995 N.E.2d 858 [2013]; see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987]). Nevertheless, viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007]) and “affording the requisite ‘great deference to the jury given its opportunity to view the witnesses’ ” (Roman, 107 A.D.3d at 1442, 967 N.Y.S.2d 791), we conclude that the verdict is not against the weight of the evidence (see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Here, “[t]he jury was entitled to credit the testimony of the People's witnesses, including that of the victim, over the testimony of defendant's witness[ ],” and we perceive no reason to disturb those credibility determinations (People v. Tetro, 175 A.D.3d 1784, 1788, 109 N.Y.S.3d 776 [4th Dept. 2019]; see Harrell, 235 A.D.3d at 1298, 226 N.Y.S.3d 817). Contrary to defendant's assertion, we conclude that there was nothing about the victim's trial testimony that was “manifestly untrue, physically impossible, contrary to experience, or self-contradictory” (People v. Mercado-Gomez, 206 A.D.3d 1643, 1644, 167 N.Y.S.3d 880 [4th Dept. 2022] [internal quotation marks omitted]). In addition, defendant's contention concerning the lack of forensic evidence corroborating the victim's testimony is unavailing inasmuch as “the testimony of [the victim] can be enough to support a conviction” (People v. Goodson, 144 A.D.3d 1515, 1516, 41 N.Y.S.3d 635 [4th Dept. 2016], lv denied 29 N.Y.3d 949, 54 N.Y.S.3d 379, 76 N.E.3d 1082 [2017] [internal quotation marks omitted]; see Mercado-Gomez, 206 A.D.3d at 1644-1645, 167 N.Y.S.3d 880; see also People v. Hackett, 166 A.D.3d 1483, 1485, 87 N.Y.S.3d 413 [4th Dept. 2018], lv denied 32 N.Y.3d 1204, 99 N.Y.S.3d 245, 122 N.E.3d 1158 [2019], reconsideration denied 33 N.Y.3d 949, 100 N.Y.S.3d 174, 123 N.E.3d 833 [2019]).

Defendant further contends that he was denied effective assistance of counsel based on defense counsel's purported failures to adequately challenge and respond to the testimony of the People's expert regarding child sexual abuse accommodation syndrome (CSAAS). We reject that contention. “There can be no denial of effective assistance of trial counsel arising from counsel's failure to ‘make a motion or argument that has little or no chance of success’ ” (People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005]) and, here, defense counsel had no legitimate basis for arguing that the expert's testimony constituted improper bolstering (see People v. Young, 206 A.D.3d 1631, 1633, 168 N.Y.S.3d 616 [4th Dept. 2022]; People v. Meyers, 188 A.D.3d 1732, 1734, 136 N.Y.S.3d 640 [4th Dept. 2020]; People v. Englert, 130 A.D.3d 1532, 1533-1534, 14 N.Y.S.3d 848 [4th Dept. 2015], lv denied 26 N.Y.3d 967, 18 N.Y.S.3d 603, 40 N.E.3d 581 [2015], lv denied 26 N.Y.3d 1144, 32 N.Y.S.3d 58, 51 N.E.3d 569 [2016]). To the extent that defendant asserts that defense counsel was ineffective in failing to adequately cross-examine the expert, we conclude that defendant's assertion lacks merit. The record establishes that defense counsel, on cross-examination of the expert, elicited acknowledgments that the expert “could give no evidence with respect to the ultimate issue of the case, i.e., defendant's guilt” (Young, 206 A.D.3d at 1633, 168 N.Y.S.3d 616 [internal quotation marks omitted]), and defendant's “simple disagreement with strategies, tactics or the scope of possible cross-examination, weighed long after the trial, does not suffice” to demonstrate that he was denied effective assistance of counsel (People v. Flores, 84 N.Y.2d 184, 187, 615 N.Y.S.2d 662, 639 N.E.2d 19 [1994]; see Young, 206 A.D.3d at 1633, 168 N.Y.S.3d 616). To the extent that defendant's assertion that defense counsel was ineffective in failing to secure opposing CSAAS testimony is reviewable on direct appeal, we conclude that it lacks merit inasmuch as defendant “has not demonstrated that such testimony was available, that it would have assisted the jury in its determination or that he was prejudiced by its absence” (Meyers, 188 A.D.3d at 1734, 136 N.Y.S.3d 640 [internal quotation marks omitted]; see Young, 206 A.D.3d at 1633, 168 N.Y.S.3d 616; Englert, 130 A.D.3d at 1533, 14 N.Y.S.3d 848). To the extent that defendant asserts that CSAAS lacks scientific validity and that defense counsel should have presented evidence to that effect either through a rebuttal expert or during cross-examination of the People's expert, we note that such “challenges to [defense] counsel's preparedness depend on matters dehors the record and are not reviewable on direct appeal” (People v. Nicholson, 26 N.Y.3d 813, 832, 28 N.Y.S.3d 663, 48 N.E.3d 944 [2016]).

We reject defendant's related contention that defense counsel was ineffective in failing to cross-examine police investigators at greater length about their efforts to access the contents of defendant's cell phone, including the video. Defense counsel asked the investigators questions designed to cast doubt on the thoroughness of the investigation and highlighted the lack of evidence against defendant obtained by the investigators, and defense counsel could have reasonably determined that asking additional questions would have undermined that part of the defense strategy seeking to show that the police failed to conduct a thorough investigation (see People v. Mastin, 232 A.D.3d 1268, 1270, 221 N.Y.S.3d 812 [4th Dept. 2024], lv denied 42 N.Y.3d 1053, 225 N.Y.S.3d 657, 250 N.E.3d 668 [2024]; People v. Pratt, 162 A.D.3d 1202, 1204, 78 N.Y.S.3d 511 [3d Dept. 2018], lv denied 32 N.Y.3d 940, 84 N.Y.S.3d 867, 109 N.E.3d 1167 [2018]). Finally, we reject defendant's contention that defense counsel was ineffective in failing to impeach the victim with ostensible prior inconsistent statements or to highlight on summation purported contradictions in the victim's testimony inasmuch as such arguments would have had “ ‘little or no chance of success’ ” (Caban, 5 N.Y.3d at 152, 800 N.Y.S.2d 70, 833 N.E.2d 213).