PEOPLE v. IRVINE (2008)

Appeal from a judgment of the County Court of St. Lawrence County (Rogers, J.), rendered February 16, 2007, upon a verdict convicting defendant of the crimes of sexual abuse in the first degree (two counts), sexual abuse in the second degree (two counts), attempted sodomy in the first degree and attempted sodomy in the second degree.

In 2006, the victims, who are sisters born in 1985 and 1989, revealed to their family that defendant had sexually abused them over the course of several years while his wife was babysitting them. Defendant was thereafter charged in an indictment with numerous crimes arising out of the alleged abuse.   Following a jury trial, defendant was found guilty of sexual abuse in the first degree (two counts), sexual abuse in the second degree (two counts), attempted sodomy in the first degree and attempted sodomy in the second degree.¹ He was sentenced to an aggregate term of 7 to 11 years in prison, to be followed by three years of postrelease supervision.   Defendant appeals.

 Initially, we agree with defendant that the time frames in counts 1, 2 and 3 are excessive.   Counts 1 and 2 allege sexual abuse in the first degree occurring “between 1998 and 1999,” and count 3 alleges sexual abuse in the second degree occurring “on or about 2002.”   An interval of one or two years is “far too excessive to particularize a single criminal act and afford defendant an adequate opportunity to prepare a defense” (People v. Dunton, 30 A.D.3d 828, 829, 817 N.Y.S.2d 442 [2006], lv. denied 7 N.Y.3d 847, 823 N.Y.S.2d 777, 857 N.E.2d 72 [2006];  see People v. Sedlock, 8 N.Y.3d 535, 538, 838 N.Y.S.2d 14, 869 N.E.2d 14 [2007];  People v. Beauchamp, 74 N.Y.2d 639, 641, 541 N.Y.S.2d 977, 539 N.E.2d 1105 [1989];  People v. Keindl, 68 N.Y.2d 410, 419-420, 509 N.Y.S.2d 790, 502 N.E.2d 577 [1986] ).   Similarly, defendant is correct that count 7 of the indictment, as amended, is time-barred;  inasmuch as that count was reduced to sexual abuse in the second degree, a misdemeanor (see Penal Law § 130.60[2] ), the statute of limitations expired on July 31, 2005, two years from the victim's 18th birthday (see CPL 30.10[2][c];  [3][f] ).  The indictment, however, was not filed until June 2006.   Although defendant failed to preserve these issues for review by raising the specific objections now advanced before us (see People v. Gray, 86 N.Y.2d 10, 19-21, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] ), we exercise our interest of justice jurisdiction and dismiss counts 1, 2, 3 and 7 (see People v. Pryce, 41 A.D.3d 983, 984, 840 N.Y.S.2d 156 [2007], lv. denied 9 N.Y.3d 880, 842 N.Y.S.2d 792, 874 N.E.2d 759 [2007];  People v. Dunton, 30 A.D.3d at 829, 817 N.Y.S.2d 442;  see also People v. Wilcox, 4 A.D.3d 794, 795, 771 N.Y.S.2d 454 [2004], lv. denied 3 N.Y.3d 650, 782 N.Y.S.2d 421, 816 N.E.2d 211 [2004] ).

With respect to the two remaining charges, counts 8 and 9 alleging attempted sodomy in the first and second degrees (see Penal Law § 110.00, former § 130.50 [1];  former § 130.45[1] ),² we reject defendant's argument that the verdict is against the weight of the evidence.   Viewing the evidence in a neutral light, particularly the victim's detailed testimony regarding the incident underlying counts 8 and 9, we cannot say that the verdict is against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 643-645, 826 N.Y.S.2d 163, 859 N.E.2d 902 [2006];  People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).   Moreover, defendant's challenges to County Court's Molineux ruling are unavailing;  the evidence of three prior acts involving one of the victims was properly admitted to demonstrate defendant's intent and the absence of mistake or accident (see People v. Doyle, 48 A.D.3d 961, 963-964, 852 N.Y.S.2d 433 [2008];  People v. Yagunoff, 266 A.D.2d 723, 725, 699 N.Y.S.2d 138 [1999], lv. denied 94 N.Y.2d 886, 705 N.Y.S.2d 19, 726 N.E.2d 496 [2000] ).   Furthermore, defendant's testimony regarding a similar incident involving the victims' older sister opened the door to her rebuttal testimony (see People v. Lopez, 9 A.D.3d 692, 693-694, 781 N.Y.S.2d 377 [2004];  see also People v. Harris, 57 N.Y.2d 335, 344-345, 456 N.Y.S.2d 694, 442 N.E.2d 1205 [1982], cert. denied 460 U.S. 1047, 103 S.Ct. 1448, 75 L.Ed.2d 803 [1983] ).

 We agree with defendant, however, that County Court erred in directing defense counsel to turn over notes protected by the attorney-client privilege.   It is well settled that “[t]he attorney-client privilege, which ․ enables one seeking legal advice to communicate with counsel for this purpose secure in the knowledge that the contents of the exchange will not later be revealed against the client's wishes[,] ․ belongs to the client and attaches if information is disclosed in confidence to the attorney for the purpose of obtaining legal advice or services” (People v. Osorio, 75 N.Y.2d 80, 84, 550 N.Y.S.2d 612, 549 N.E.2d 1183 [1989] [citations omitted];  see People v. Cassas, 84 N.Y.2d 718, 723, 622 N.Y.S.2d 228, 646 N.E.2d 449 [1995] ).   Thus, “[a] defendant who takes the stand in his or her own defense may not be cross-examined concerning statements to his or her attorney” (People v. Ackley, 235 A.D.2d 633, 634, 652 N.Y.S.2d 642 [1997], lv. denied 89 N.Y.2d 983, 656 N.Y.S.2d 742, 678 N.E.2d 1358 [1997];  see People v. Wilkins, 65 N.Y.2d 172, 179-180, 490 N.Y.S.2d 759, 480 N.E.2d 373 [1985];  People v. Glenn, 52 N.Y.2d 880, 881, 437 N.Y.S.2d 298, 418 N.E.2d 1316 [1981] ).

Here, the record evinces that during the suppression hearing, the People requested defense counsel's notes pertaining to defendant's testimony.   County Court then conducted an in camera review of notes that defense counsel had taken during interviews with defendant and directed a court attendant to make copies of the notes for the People.   Thereafter, and without objection from defense counsel, the People cross-examined defendant about the contents of the notes, including, among other things, his statements to counsel that he had consensual sexual contact with one of the victims at her initiation.   The People also cross-examined defendant on that subject at trial based upon testimony elicited during the suppression hearing regarding defense counsel's notes.

Inasmuch as there is no evidence that defendant waived his attorney-client privilege, the provision of the notes to the People and their cross-examination based upon the information therein was error (see People v. Glenn, 52 N.Y.2d at 881, 437 N.Y.S.2d 298, 418 N.E.2d 1316;  People v. Ackley, 235 A.D.2d at 634, 652 N.Y.S.2d 642).   Moreover, the material contained in the notes was directly contrary to the primary defense asserted throughout the trial-that any touching of the victims that may have occurred was either accidental or as the result of horseplay and never for sexual gratification.   Thus, in our view, there is a significant probability that this error affected the verdict such that it was not harmless (see People v. Osorio, 75 N.Y.2d at 86-87, 550 N.Y.S.2d 612, 549 N.E.2d 1183;  People v. Glenn, 52 N.Y.2d at 881, 437 N.Y.S.2d 298, 418 N.E.2d 1316;  cf. People v. Ackley, 235 A.D.2d at 634, 652 N.Y.S.2d 642).   In any event, even assuming that this particular error was harmless in itself, we would conclude that defendant was denied his constitutional right to the effective assistance of counsel due to the cumulative effect of the errors made by defense counsel in revealing privileged communications without objection, and failing to seek dismissal of counts 1, 2 and 3 for alleging facially excessive time frames and count 7, as amended, on the ground that it was time-barred (see People v. Turner, 5 N.Y.3d 476, 480-481, 806 N.Y.S.2d 154, 840 N.E.2d 123 [2005];  People v. Baldi, 54 N.Y.2d 137, 146-147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ).   Accordingly, this matter must be reversed and remitted for a new trial on counts 8 and 9 of the indictment.

Defendant's remaining arguments are either unpreserved for our review or have been rendered academic by our decision.

ORDERED that the judgment is reversed, on the law and as a matter of discretion in the interest of justice, counts 1, 2, 3 and 7 of the indictment dismissed and matter remitted to the County Court of St. Lawrence County for a new trial on counts 8 and 9 of the indictment.

FOOTNOTES

1.   Counts 4, 5 and 6 of the indictment, charging sexual abuse in the first degree, were dismissed as barred by the statute of limitations.

2.   Effective November 2003, the crimes of “sodomy” in the first and second degrees were renamed “criminal sexual act” in the first and second degrees (see L. 2003, ch. 264, §§ 19, 20).

MERCURE, J.

CARDONA, P.J., ROSE, MALONE JR. and KAVANAGH, JJ., concur.