PEOPLE v. COLLINS (2008)

Appeal from a judgment of the County Court of Otsego County (Burns, J.), rendered May 4, 2007, upon a verdict convicting defendant of three counts of the crime of sexual abuse in the first degree.

Following a jury trial, defendant was convicted of three counts of sexual abuse in the first degree in connection with his sexual abuse of a seven-year-old girl.   He was thereafter sentenced to an aggregate prison term of 21 years, with three years of postrelease supervision.   Defendant now appeals.

 Contrary to defendant's contention, the evidence is legally sufficient to support the conviction of sexual abuse in the first degree (see generally People v. Bleakley, 69 N.Y.2d 490, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).   As relevant here, a person is guilty of sexual abuse in the first degree when he or she has sexual contact with a person less than 11 years old (see Penal Law § 130.65[3];  see also Penal Law § 130.00[3] ).   Here, the evidence presented at trial established that the seven-year-old victim was alone in defendant's care for at least six days during the time of the alleged abuse.   The victim testified that defendant abused her on more than one occasion by taking off her clothes, attempting sexual intercourse and touching her vagina with his hands.   In addition, DNA evidence established that both the victim's blood and defendant's seminal fluid were found on items taken from areas in defendant's house in which the victim testified the abuse took place.   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];  People v. Mitchell, 42 A.D.3d 758, 760, 839 N.Y.S.2d 339 [2007], lv. denied 9 N.Y.3d 963, 848 N.Y.S.2d 32, 878 N.E.2d 616 [2007] ), there is a valid line of reasoning supporting the jury's finding that defendant committed sexual abuse in the first degree (see People v. Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   In addition, after weighing this evidence in a neutral light, and according deference to the jury's credibility determinations, we are not persuaded by defendant's contention that minor inconsistencies in the testimony of the victim or her mother rendered the verdict contrary to the weight of the evidence (see id.;  People v. Carthrens, 171 A.D.2d 387, 392, 577 N.Y.S.2d 249 [1991] ).

With regard to County Court's Sandoval ruling, we find that defendant's 1996 conviction upon his plea of guilty of petit larceny is probative as to his character for truthfulness and lack of credibility (see People v. Willis, 282 A.D.2d 882, 883, 725 N.Y.S.2d 415 [2001], lv. denied 96 N.Y.2d 869, 730 N.Y.S.2d 44, 754 N.E.2d 1127 [2001] ).   County Court properly found that the probative value of this conviction outweighed any prejudicial effect, despite its remoteness in time (see People v. Barton, 13 A.D.3d 721, 724, 787 N.Y.S.2d 135 [2004], lv. denied 5 N.Y.3d 785, 801 N.Y.S.2d 806, 835 N.E.2d 666 [2005] ).

Defendant next argues that County Court erred in denying his motion to set aside the verdict, which was based upon the allegation that one juror had improperly prejudged his guilt.   However, inasmuch as this juror was not identified by defendant, and thus was not questioned about the allegation, and according deference to County Court's credibility determinations, it cannot be said that defendant proved by a preponderance of the evidence that improper conduct by a juror affected a substantial right (see CPL 330.30[2];  People v. Irizarry, 83 N.Y.2d 557, 561, 611 N.Y.S.2d 807, 634 N.E.2d 179 [1994];  People v. Leonard, 252 A.D.2d 740, 741, 677 N.Y.S.2d 639 [1998], lv. denied 92 N.Y.2d 983, 683 N.Y.S.2d 764, 706 N.E.2d 752 [1998] ).   Accordingly, County Court properly denied the motion.

 Defendant's argument that he was denied the effective assistance of counsel is likewise without merit.   Among other things, defense counsel adequately questioned potential jurors during voir dire, raised appropriate objections during trial, made appropriate motions and was able to secure a hung jury on 9 out of the 12 charges against defendant, which then resulted in the dismissal of those charges.   A review of the record as a whole reveals that defendant was provided with meaningful representation (see People v. Baldi, 54 N.Y.2d 137, 146-147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981];  People v. Ryan, 46 A.D.3d 1125, 1126, 847 N.Y.S.2d 726 [2007], lv. denied 10 N.Y.3d 939, 862 N.Y.S.2d 346, 892 N.E.2d 412 [2008] ).

 Finally, we reject defendant's contentions that the sentence imposed was illegal or harsh and excessive.   Consecutive sentences are legally permissible where, as here, the record supports a finding that the “crimes [were] committed through separate and distinct acts” (People v. Salcedo, 92 N.Y.2d 1019, 1021, 684 N.Y.S.2d 480, 707 N.E.2d 435 [1998];  see Penal Law § 70.25[2];  People v. Lynch, 291 A.D.2d 582, 583, 738 N.Y.S.2d 116 [2002] ).   Moreover, given the nature of defendant's crimes and the relationship between him and his victim, the sentences imposed here do not represent an abuse of discretion by County Court and defendant has not established that extraordinary circumstances exist that would warrant a reduction in the interest of justice (see People v. Scanlon, 52 A.D.3d 1035, 1040, 861 N.Y.S.2d 426 [2008], lv. denied 11 N.Y.3d 741, 864 N.Y.S.2d 399, 894 N.E.2d 663 [2008];  People v. Miller, 226 A.D.2d 833, 837, 640 N.Y.S.2d 904 [1996], lv. denied 88 N.Y.2d 939, 647 N.Y.S.2d 172, 670 N.E.2d 456 [1996] ).

To the extent not specifically addressed herein, defendant's remaining contentions have been considered and found to be without merit.

ORDERED that the judgment is affirmed.

MALONE JR., J.

SPAIN, J.P., LAHTINEN, KANE and STEIN, JJ., concur.