PEOPLE v. NICKEL (2005)

Appeal from a judgment of the County Court of Albany County (Czajka, J.), rendered July 6, 2001, convicting defendant following a nonjury trial of the crimes of sodomy in the first degree, aggravated sexual abuse in the second degree, sexual abuse in the first degree (two counts) and endangering the welfare of a child.

In the course of a police investigation, defendant gave a written statement in which he described his sexual proclivities, including his love for and sexual touching of several young boys.   A grand jury handed up a seven-count indictment charging defendant with various sex crimes involving minors.   Defendant moved to sever the counts of the indictment and for a pretrial hearing to determine whether the child victims should be precluded from testifying due to suggestive questioning by investigators.   County Court denied these motions.   Following a bench trial, the court dismissed one count of aggravated sexual abuse, acquitted defendant of use of a child in a sexual performance, and found him guilty of sodomy in the first degree, aggravated sexual abuse in the second degree, two counts of sexual abuse in the first degree, and endangering the welfare of a child.   The court sentenced defendant to prison terms of 25 years for his sodomy conviction, 15 years for aggravated sexual abuse, seven years for each count of sexual abuse, and one year for endangering the welfare of a child.   All terms were to be served consecutively, except the one-year term, which was to run concurrent to the other terms.   Defendant appeals.

 County Court did not err in denying defendant's motion to sever the counts of the indictment.   Although the counts related to three different victims and different locations, the counts were statutorily joinable because they were “the same or similar in law” (CPL 200.20[2][c] ).  In such circumstances, the determination whether to sever the counts rests in the trial court's sound discretion (see CPL 200.20[3];  People v. Johnson, 268 A.D.2d 891, 893, 703 N.Y.S.2d 545 [2000], lv. denied 94 N.Y.2d 921, 708 N.Y.S.2d 361, 729 N.E.2d 1160 [2000] ), which we cannot say was abused here.   Proof of each charge was “separately presented, uncomplicated and easily distinguishable” (People v. Kelly, 270 A.D.2d 511, 512, 705 N.Y.S.2d 689 [2000], lv. denied 95 N.Y.2d 854, 714 N.Y.S.2d 5, 736 N.E.2d 866 [2000] ). The court's acquittal on one charge indicates that it separately considered the evidence as to each victim, and defendant was not prejudiced by joinder (see People v. Monte, 302 A.D.2d 687, 688, 756 N.Y.S.2d 293 [2003];  People v. Kelly, supra at 512-513, 705 N.Y.S.2d 689).

 County Court also properly denied defendant's motion for a pretrial taint hearing.   Although there is no express statutory authority for a hearing to determine whether the testimony of child witnesses has been tainted by suggestive interviewing techniques (see People v. Jones, 185 Misc.2d 899, 901, 714 N.Y.S.2d 876 [2000] ), such absence is not determinative (see People v. Tunstall, 63 N.Y.2d 1, 6-9, 479 N.Y.S.2d 192, 468 N.E.2d 30 [1984] [mandating pretrial taint hearing for witness who was hypnotized];  People v. Hughes, 59 N.Y.2d 523, 466 N.Y.S.2d 255, 453 N.E.2d 484 [1983] [same];  but see People v. Wilson, 255 A.D.2d 612, 612-613, 679 N.Y.S.2d 732 [1998], lv. denied 93 N.Y.2d 981, 695 N.Y.S.2d 68, 716 N.E.2d 1113 [1999] [denying child witness taint hearing because no express exclusionary rule and no novel scientific evidence] ).   Upon a proper showing, a court may direct a pretrial taint hearing (see People v. Kemp, 251 A.D.2d 1072, 674 N.Y.S.2d 525 [1998], lv. denied 92 N.Y.2d 900, 680 N.Y.S.2d 64, 702 N.E.2d 849 [1998] [denying pretrial hearing because no nonspeculative allegations of undue suggestion];  People v. Michael M., 162 Misc.2d 803, 810-811, 618 N.Y.S.2d 171 [1994] [ordering taint hearing regarding child witness];  Jelinek v. Costello, 247 F.Supp.2d 212, 279 [2003] ).   Here, defendant failed to make a nonspeculative showing of any undue suggestion.   In any event, any suggestibility, the manner of questioning and its effects on the victims' testimony could be, and was, addressed on cross-examination of the victims and the police investigators (see People v. Kanani, 272 A.D.2d 186, 187, 709 N.Y.S.2d 505 [2000], lv. denied 95 N.Y.2d 935, 721 N.Y.S.2d 612, 744 N.E.2d 148 [2000];  People v. Washington, 238 A.D.2d 263, 264, 657 N.Y.S.2d 24 [1997], lv. denied 90 N.Y.2d 944, 664 N.Y.S.2d 762, 687 N.E.2d 659 [1997] ).   Thus, the court properly denied a pretrial taint hearing.

 The verdict was not against the weight of the evidence.   Defendant's own statement, the photographic evidence and the victims' testimony established guilt.   Inconsistencies or inaccuracies in such testimony merely raised credibility issues that the trier of fact was free to resolve (see People v. Black, 304 A.D.2d 905, 907-908, 757 N.Y.S.2d 635 [2003], lv. denied 100 N.Y.2d 578, 764 N.Y.S.2d 388, 796 N.E.2d 480 [2003];  People v. Rivera, 281 A.D.2d 702, 703, 721 N.Y.S.2d 429 [2001], lv. denied 96 N.Y.2d 805, 726 N.Y.S.2d 383, 750 N.E.2d 85 [2001] ).   As no witness's testimony was incredible as a matter of law, and giving due deference to the trier of fact who observed the witnesses, we cannot say that the verdict was against the weight of the evidence (see People v. Alford, 287 A.D.2d 884, 887, 731 N.Y.S.2d 563 [2001], lv. denied 97 N.Y.2d 750, 742 N.Y.S.2d 610, 769 N.E.2d 356 [2002];  People v. Soulia, 263 A.D.2d 869, 872, 695 N.Y.S.2d 179 [1999], lv. denied 94 N.Y.2d 829, 702 N.Y.S.2d 600, 724 N.E.2d 392 [1999] ).

 The admission of expert testimony rests within the sound discretion of the trial court (see People v. Williams, 97 N.Y.2d 735, 736, 742 N.Y.S.2d 597, 769 N.E.2d 343 [2002];  People v. Berry, 5 A.D.3d 866, 867, 773 N.Y.S.2d 181 [2004], lv. denied 3 N.Y.3d 637, 782 N.Y.S.2d 408, 816 N.E.2d 198 [2004] ).   County Court did not abuse its discretion in excluding defendant's proffered expert testimony since the comparison of a clear photograph of defendant's profile to defendant present in court was within the ken of the factfinder, rendering the expert's opinion unnecessary and improper (see People v. Paro, 283 A.D.2d 669, 670, 724 N.Y.S.2d 531 [2001], lv. denied 96 N.Y.2d 922, 732 N.Y.S.2d 640, 758 N.E.2d 666 [2001] ).

 The People's comments did not deprive defendant of a fair trial.   References to defendant as a “boy lover” and to the organization NAMBLA parroted phrases used in defendant's statement to police, differentiating this case from similar comments in People v. Bagarozy, 132 A.D.2d 225, 522 N.Y.S.2d 848 [1987].   Several objections to such comments or characterizations were sustained.   Even assuming that some of the prosecutor's comments were erroneous, as this was a bench trial and judges are presumed capable of rendering dispassionate decisions solely on appropriate legal criteria (see Matter of Dean S., 185 A.D.2d 324, 325, 586 N.Y.S.2d 276 [1992];  People v. Arrington, 158 A.D.2d 461, 551 N.Y.S.2d 55 [1990], lv. denied 76 N.Y.2d 730, 558 N.Y.S.2d 892, 557 N.E.2d 1188 [1990] ), such comments did not deprive defendant of a fair trial, especially considering the overwhelming evidence of defendant's guilt.

 Defendant received the effective assistance of counsel.   Ineffective assistance cannot be established merely by citing losing trial tactics (see People v. Curry, 294 A.D.2d 608, 611, 741 N.Y.S.2d 324 [2002], lv. denied 98 N.Y.2d 674, 746 N.Y.S.2d 463, 774 N.E.2d 228 [2002] ).   The decision not to request an adjournment for consultation with a medical expert regarding one victim's records was a trial strategy, as counsel was able to effectively cross-examine that victim regarding his extensive medication regimen.   Although counsel did not present an expert witness regarding child victim suggestibility, he cross-examined the children and investigating officers, and provided County Court with information and case law concerning child suggestibility.   Given this information, County Court was clearly in a position to make a reasoned determination concerning the reliability of the child witnesses as well as their credibility.   Despite defendant's hindsight disagreement with counsel's trial strategies, defendant was provided meaningful representation.

 We find no merit to defendant's argument that County Court abdicated its role as neutral arbitrator.   The requirement that the court “consider the case” (CPL 320.20[3][d] ) does not contemplate any threshold minimum time for deliberation.   Additionally, the court was not required to provide a rationale or basis for its determination any more than a jury would be for its verdict (see People v. Carter, 63 N.Y.2d 530, 539, 483 N.Y.S.2d 654, 473 N.E.2d 6 [1984] ).

 Lastly, defendant contends that his sentence, totaling over 50 years, is harsh and excessive.   Given defendant's efforts to access particularly vulnerable children and the impact of his conduct upon the children, we find that a maximum sentence for defendant's most serious offense against each child is justified.   Nevertheless, in part because defendant has no criminal history, we exercise our discretion to modify the sentence in the interest of justice (see CPL 470.15[6][b] ), by directing that the multiple charges concerning one victim run concurrently to each other but consecutively to the conviction on the single charge concerning the other victim (compare People v. Thornton, 4 A.D.3d 561, 563-564, 771 N.Y.S.2d 597 [2004], lv. denied 2 N.Y.3d 808, 781 N.Y.S.2d 307, 814 N.E.2d 479 [2004];  People v. Hutzler, 270 A.D.2d 934, 936, 706 N.Y.S.2d 807 [2000], lv. denied 94 N.Y.2d 948, 710 N.Y.S.2d 5, 731 N.E.2d 622 [2000] ).

ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by directing that defendant's sentences for sodomy in the first degree, aggravated sexual abuse in the second degree, sexual abuse in the first degree and endangering the welfare of a child under counts 1, 2, 5 and 6 of the indictment run concurrently to one another and consecutively to the sentence for sexual abuse in the first degree under count 4 of the indictment;  and, as so modified, affirmed.

I dissent solely on the issue of sentence.   I fail to find that the circumstances herein warrant modification of the sentence in the interest of justice.

Defendant pursued employment and volunteer positions that would place vulnerable children in his care and then victimized them for his own sexual gratification.   Defendant maintained throughout these proceedings that such exploitation of these children was an acceptable expression of love, believing that they did not contest his sexual violation of them.   These events were further compounded by defendant's photographing of himself sodomizing one of his nine-year-old victims.   At trial, two victims testified concerning defendant's dehumanizing acts.

Defendant's inability to conform his conduct to the restrictions imposed upon him was apparent even after he was arrested.   When he was released on bail and placed on electronic monitoring, he corresponded with another known sex offender and told him that he continued to have contact with minors in violation of his conditions. He further professed his philosophical view that pedophilia is an “acceptable expression of God's will for love and unity among human beings.”

Considering defendant's abhorrent conduct and lack of remorse, I find no basis upon which I could conceivably reduce this sentence in any manner suggested by my colleagues (see People v. Serrano, 14 A.D.3d 874, 788 N.Y.S.2d 272 [decided herewith] [the defendant's sentence of over 100 years in prison for sex offenses affirmed];  People v. Greene, 13 A.D.3d 991, 787 N.Y.S.2d 466 [2004];  People v. Sipe, 7 A.D.3d 827, 776 N.Y.S.2d 370 [2004];  People v. Carpenter, 301 A.D.2d 676, 676, 753 N.Y.S.2d 215 [2003], lv. denied 99 N.Y.2d 626, 760 N.Y.S.2d 107, 790 N.E.2d 281 [2003];  People v. Jurgensen, 288 A.D.2d 937, 938, 732 N.Y.S.2d 815 [2001], lv. denied 97 N.Y.2d 684, 738 N.Y.S.2d 299, 764 N.E.2d 403 [2001];  People v. Gero, 286 A.D.2d 789, 729 N.Y.S.2d 805 [2001], lv. denied 97 N.Y.2d 641, 735 N.Y.S.2d 498, 761 N.E.2d 3 [2001];  People v. Gorga, 268 A.D.2d 614, 615, 701 N.Y.S.2d 458 [2000];  People v. David, 263 A.D.2d 615, 692 N.Y.S.2d 836 [1999] ).

I dissent solely on the issue of sentence.   In my view, both the original sentence imposed, an aggregate prison term of 54 years, as well as the majority's modification thereof to an aggregate prison term of 32 years, are harsh and excessive.   While I do not in any way minimize defendant's abhorrent conduct toward either victim, I do not think it warrants maximum, consecutive sentencing, even as modified by the majority (see People v. Morin, 192 A.D.2d 791, 596 N.Y.S.2d 508 [1993], lv. denied 81 N.Y.2d 1077, 601 N.Y.S.2d 597, 619 N.E.2d 675 [1993] ).   Under equally offensive or even more egregious facts than at issue here, courts have imposed markedly lower sentences (see e.g. People v. Munroe, 307 A.D.2d 588, 763 N.Y.S.2d 691 [2003], lv. denied 100 N.Y.2d 644, 769 N.Y.S.2d 210, 801 N.E.2d 431 [2003];  People v. Parker, 307 A.D.2d 538, 762 N.Y.S.2d 172 [2003], lvs. denied 100 N.Y.2d 644, 769 N.Y.S.2d 210, 801 N.E.2d 431 [2003], 2 N.Y.3d 744, 778 N.Y.S.2d 469, 810 N.E.2d 922 [2004];  People v. Paige, 289 A.D.2d 872, 736 N.Y.S.2d 121 [2001], lv. denied 97 N.Y.2d 759, 742 N.Y.S.2d 619, 769 N.E.2d 365 [2002];  People v. Johnson, 268 A.D.2d 891, 703 N.Y.S.2d 545 [2000], lvs. denied 94 N.Y.2d 921, 923, 924, 708 N.Y.S.2d 361, 362, 363, 729 N.E.2d 1160, 1161, 1162 [2000];  People v. Morin, supra ).   Thus, I believe concurrent sentences aggregating 25 years would be sufficient under the circumstances.

KANE, J.

SPAIN and MUGGLIN, JJ., concur.