PEOPLE v. BESSETTE (2026)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Albany County (Andra Ackerman, J.), rendered December 6, 2022, upon a verdict convicting defendant of the crime of course of sexual conduct against a child in the second degree.

In June 2021, defendant was charged by indictment with one count of predatory sexual assault against a child stemming from allegations that between January 2020 and March 2021, defendant engaged in two or more acts of sexual conduct, which included at least one instance of sexual intercourse, with the victim at a home in Albany County where they both resided.  Upon a review of the grand jury minutes, County Court found that the proof presented failed to establish that sexual intercourse between defendant and the victim occurred and, thus, the court reduced the charge to the lesser included offense of course of sexual conduct against a child in the second degree.  Following a jury trial, defendant was convicted as charged and was later sentenced to a prison term of seven years, to be followed by 10 years of postrelease supervision.  Defendant appeals.

We affirm.  Defendant first contends that the verdict is against the weight of the evidence.  “[W]hen conducting a weight of the evidence review, this Court must view the evidence in a neutral light and determine first whether a different verdict would have been unreasonable and, if not, weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony to determine if the verdict is supported by the weight of the evidence” (People v. Gerhard, 244 A.D.3d 1313, 1314, 246 N.Y.S.3d 546 [3d Dept. 2025] [internal quotation marks, brackets and citations omitted];  see People v. Morey, 231 A.D.3d 1363, 1364, 219 N.Y.S.3d 796 [3d Dept. 2024], lv denied 43 N.Y.3d 931, 229 N.Y.S.3d 88, 254 N.E.3d 632 [2025]).  A weight of the evidence review necessitates consideration of the evidence in a neutral light while according deference to the jury's credibility assessments (see People v. Alvarez, 238 A.D.3d 1266, 1269, 233 N.Y.S.3d 813 [3d Dept. 2025], lv denied 44 N.Y.3d 981, 241 N.Y.S.3d 129, 267 N.E.3d 1198 [2025];  People v. Saunders, 232 A.D.3d 1039, 1040, 222 N.Y.S.3d 221 [3d Dept. 2024], lv denied 43 N.Y.3d 1058, 239 N.Y.S.3d 96, 265 N.E.3d 1113 [2025]).  “A person is guilty of course of sexual conduct against a child in the second degree when, over a period of time not less than three months in duration ․ he or she, being [18] years old or more, engages in two or more acts of sexual conduct with a child less than [13] years old” (Penal Law § 130.80[1][b];  see People v. Baez, 232 A.D.3d 1044, 1045, 222 N.Y.S.3d 710 [3d Dept. 2024]).

Defendant's argument does not directly assert a lack of evidence supporting any of the necessary elements of course of sexual conduct against a child in the second degree; ¹  rather, defendant contends that he could not possibly have engaged in sexual conduct with the victim without being observed by one of the numerous inhabitants in the residence and, in turn, that the victim's testimony providing an account of the numerous acts of sexual conduct that occurred in defendant's room was essentially incredible.  On that, defendant emphasizes his testimony that he was never alone in the house with the victim and that there were always six minors present, as the events he was accused of took place during the COVID–19 pandemic.  Defendant asserted that he did not have a functioning lock on his door but acknowledged that he was able to shut his door.  Defendant denied the allegations against him and insisted that he was never alone with the victim in his bedroom at any point.

The victim's mother testified at trial that defendant resided with her and the victim, along with numerous minors and adults, in a three-bedroom home, where defendant had his own room on the second floor.  The victim's mother acknowledged that there were 12 people residing in the home in March 2021.  Both the victim and the victim's mother testified that defendant would frequently take care of the various minors residing in the home while the adults were working during the day, and both indicated that, as part of that task, defendant would assign the minors chores around the house.  According to the victim, it was during the times that defendant assigned the other minors to do chores, while the adults were out of the house, that he would call her back up to his bedroom to engage in sexual conduct.  The victim testified that, although defendant did not have a lock on the door, he did not express any nervousness about anyone coming into the bedroom while the sexual conduct was occurring.  The victim noted that defendant did not remove his or the victim's shirts during the episodes and, on occasion, he would pull the covers of his bed over them.

Contrary to defendant's contention, the aforementioned facts do not definitively establish that it was impossible to engage in the acts he was accused of without being discovered.  Rather, the victim's account, which noted that the conduct occurred in defendant's room behind a closed door while the other minors in the house were engaged in various chores, provided a sufficient basis for the jury to determine whether the circumstances and time frames of the sexual conduct were established beyond a reasonable doubt.  Accordingly, although a different verdict would not have been unreasonable had the jury credited defendant's account and rejected the victim's, they did not, and our neutral review of the evidence while according deference to the jury's credibility determinations satisfies us that the verdict is not against the weight of the evidence (see People v. Robbins, 236 A.D.3d 1097, 1100, 229 N.Y.S.3d 661 [3d Dept. 2025];  People v. Cuadrado, 227 A.D.3d 1174, 1177–1178, 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];  People v. Wells, 224 A.D.3d 1155, 1158, 207 N.Y.S.3d 699 [3d Dept. 2024], lv denied 42 N.Y.3d 941, 217 N.Y.S.3d 907, 242 N.E.3d 693 [2024];  People v. Gertz, 204 A.D.3d 1166, 1169, 166 N.Y.S.3d 739 [3d Dept. 2022], lv denied 38 N.Y.3d 1070, 171 N.Y.S.3d 434, 191 N.E.3d 386 [2022];  People v. Horton, 173 A.D.3d 1338, 1340, 104 N.Y.S.3d 363 [3d Dept. 2019], lv denied 34 N.Y.3d 933, 109 N.Y.S.3d 701, 133 N.E.3d 402 [2019]).

Defendant next contends that County Court erred in limiting his cross-examination at trial of both the investigating officer and the victim's mother.  We disagree.  Although “[s]pecific acts of misconduct may be explored on cross-examination of a witness for impeachment purposes when such cross-examination is conducted in good faith upon a reasonable basis in fact” (People v. Daley, 9 A.D.3d 601, 602, 780 N.Y.S.2d 423 [3d Dept. 2004];  see People v. Smith, 27 N.Y.3d 652, 661, 36 N.Y.S.3d 861, 57 N.E.3d 53 [2016]), “the trial court has broad discretion to limit the scope of cross-examination when the questions are irrelevant or only marginally relevant, concern collateral issues, or pose a danger of misleading the jury” (People v. Doane, 212 A.D.3d 875, 882–883, 181 N.Y.S.3d 364 [3d Dept. 2023] [internal quotation marks, brackets and citation omitted], lv denied 39 N.Y.3d 1154, 190 N.Y.S.3d 702, 211 N.E.3d 1155 [2023];  see People v. Green, 208 A.D.3d 1539, 1544, 175 N.Y.S.3d 355 [3d Dept. 2022]).  As to the investigating officer, defendant sought to cross-examine him with respect to an unsubstantiated complaint for an incident that occurred while he was on duty as well as an off-duty incident, both of which were premised on allegations that the officer had struck a child.  Neither incident resulted in discipline or criminal charges and neither directly implicated the officer's veracity (see People v. Rouse, 34 N.Y.3d 269, 276, 117 N.Y.S.3d 634, 140 N.E.3d 957 [2019];  People v. Smith, 27 N.Y.3d at 661, 36 N.Y.S.3d 861, 57 N.E.3d 53;  People v. Walker, 83 N.Y.2d 455, 461, 611 N.Y.S.2d 118, 633 N.E.2d 472 [1994]).  As to the victim's mother, defendant sought to impeach her on the basis that she suffered from a mental health condition that impacted her truthfulness.  However, defendant offered no competent evidence supporting the premise that her purported condition had any bearing on her ability to tell the truth (see People v. Gertz, 204 A.D.3d at 1170, 166 N.Y.S.3d 739;  People v. McCray, 102 A.D.3d 1000, 1007–1008, 958 N.Y.S.2d 511 [3d Dept. 2013], affd 23 N.Y.3d 193, 989 N.Y.S.2d 649, 12 N.E.3d 1079 [2014]) and, noting the substance of the mother's testimony, using her purported condition essentially amounted to a collateral attack on the victim's credibility on grounds that could be explored directly through cross-examination of the victim (see People v. Doane, 212 A.D.3d at 883, 181 N.Y.S.3d 364;  People v. Love, 307 A.D.2d 528, 532, 762 N.Y.S.2d 162 [3d Dept. 2003], lv denied 100 N.Y.2d 643, 769 N.Y.S.2d 209, 801 N.E.2d 430 [2003];  see also People v. Francisco, 44 A.D.3d 870, 870, 843 N.Y.S.2d 439 [2d Dept. 2007], lv denied 9 N.Y.3d 1033, 852 N.Y.S.2d 19, 881 N.E.2d 1206 [2008];  People v. McGlothin, 6 A.D.3d 462, 463, 773 N.Y.S.2d 883 [2d Dept. 2004], lv denied 3 N.Y.3d 644, 782 N.Y.S.2d 415, 816 N.E.2d 205 [2004]).  All told, we find that County Court properly weighed the relevant factors in making its determination to limit the grounds for cross-examination of both witnesses and we discern no abuse of discretion in its rulings (see People v. Erfurt, 234 A.D.3d 1120, 1124, 226 N.Y.S.3d 370 [3d Dept. 2025], lv denied 43 N.Y.3d 1008, 234 N.Y.S.3d 807, 261 N.E.3d 942 [2025];  People v. Graham, 215 A.D.3d 998, 1007, 187 N.Y.S.3d 354 [3d Dept 2023], lv denied 40 N.Y.3d 928, 192 N.Y.S.3d 495, 213 N.E.3d 637 [2023];  People v. Green, 208 A.D.3d at 1544, 175 N.Y.S.3d 355;  People v. Gannon, 174 A.D.3d 1054, 1061, 104 N.Y.S.3d 770 [3d Dept. 2019], lv denied 34 N.Y.3d 980, 113 N.Y.S.3d 632, 137 N.E.3d 2 [2019]).

Defendant further argues that County Court committed reversible error when it failed to respond to the jury's request to hear the court's instruction on reasonable doubt and the victim's testimony with respect “to the abuse by both prosecution and defense.”  Contrary to his contention, we find that this argument is unpreserved.²  Defendant maintains that he preserved this issue by requesting, during the charge conference, an instruction to suspend deliberations during the pendency of a request by the jury for more information or instruction.  We reject the premise that the request for such a charge is sufficient to preserve the specific objection raised on appeal (see People v. Fleming, 70 N.Y.2d 947, 948, 524 N.Y.S.2d 670, 519 N.E.2d 616 [1988]).  In order to properly preserve an argument, a defendant must make a specific objection that would permit the court to cure the alleged error in real time (see CPL 470.05[2];  see also People v. Keschner, 25 N.Y.3d 704, 721–722, 16 N.Y.S.3d 187, 37 N.E.3d 690 [2015];  People v. Douglass, 115 A.D.3d 1055, 1057, 981 N.Y.S.2d 846 [3d Dept. 2014]).  On that, there is a clear distinction between the argument that a charge should have been provided to the jury that deliberations should always pause when a jury note is pending (see People v. Bonaparte, 196 A.D.3d 866, 869, 151 N.Y.S.3d 257 [3d Dept. 2021], lv denied 37 N.Y.3d 1025, 153 N.Y.S.3d 409, 175 N.E.3d 434 [2021];  People v. Woodridge, 30 A.D.3d 898, 900, 817 N.Y.S.2d 748 [3d Dept. 2006], lv denied 7 N.Y.3d 852, 823 N.Y.S.2d 782, 857 N.E.2d 77 [2006];  People v. Udzinski, 146 A.D.2d 245, 251, 541 N.Y.S.2d 9 [2d Dept. 1989], lv denied 74 N.Y.2d 853, 546 N.Y.S.2d 1018, 546 N.E.2d 201 [1989]) and the argument now advanced on appeal suggesting that the note at issue implicated a fundamental issue to the case and, in turn, that the court should have suspended deliberations until an answer to the note was provided (see People v. Mack, 27 N.Y.3d 534, 543, 36 N.Y.S.3d 68, 55 N.E.3d 1041 [2016];  see also People v. Morse, 182 A.D.2d 781, 781, 582 N.Y.S.2d 776 [2d Dept. 1992]).  The latter argument was not raised in response to the jury note, rendering that specific argument unpreserved (see People v. Alvarez, 239 A.D.2d 263, 263, 658 N.Y.S.2d 837 [1st Dept. 1997], lv denied 90 N.Y.2d 1009, 666 N.Y.S.2d 104, 688 N.E.2d 1387 [1997];  People v. Frye, 192 A.D.2d 412, 412, 596 N.Y.S.2d 373 [1st Dept. 1993], lv denied 82 N.Y.2d 894, 610 N.Y.S.2d 161, 632 N.E.2d 471 [1993]).  Moreover, to the extent that defendant asks us to exercise our interest of justice jurisdiction in response to this argument, we decline to do so based upon the circumstances presented here (see People v. Agosto, 73 N.Y.2d 963, 967, 540 N.Y.S.2d 988, 538 N.E.2d 340 [1989];  People v. Robtoy, 144 A.D.3d 1190, 1193, 40 N.Y.S.3d 630 [3d Dept. 2016], lv denied 28 N.Y.3d 1150, 52 N.Y.S.3d 301, 74 N.E.3d 686 [2017];  People v. Douglass, 115 A.D.3d at 1057, 981 N.Y.S.2d 846;  People v. Sorrell, 108 A.D.3d 787, 793, 969 N.Y.S.2d 198 [3d Dept. 2013], lv denied 23 N.Y.3d 1025, 992 N.Y.S.2d 808, 16 N.E.3d 1288 [2014];  People v. Albanese, 45 A.D.3d 691, 692, 850 N.Y.S.2d 112 [2d Dept. 2007], lv denied 10 N.Y.3d 761, 854 N.Y.S.2d 323, 883 N.E.2d 1258 [2008];  compare People v. Morse, 182 A.D.2d at 781, 582 N.Y.S.2d 776).

Finally, defendant concedes that his argument suggesting that the investigating officer improperly bolstered the victim's testimony is unpreserved and, to the extent that defendant relies on these issues in support of his argument that counsel was ineffective, we find that argument lacking in merit.  Defendant focuses on that part of the officer's testimony that generally reflected his considerations in deciding to pursue the investigation into the victim's allegations, including his assessment that the information he possessed at that time did not establish that she was motivated to fabricate the allegations (see generally People v. Gross, 26 N.Y.3d 689, 695, 27 N.Y.S.3d 459, 47 N.E.3d 738 [2016];  People v. Ludwig, 24 N.Y.3d 221, 231, 997 N.Y.S.2d 351, 21 N.E.3d 1012 [2014];  compare People v. Pabon, 28 N.Y.3d 147, 157, 42 N.Y.S.3d 659, 65 N.E.3d 688 [2016]).  Even if we did deem the officer's statements objectionable, the latter point clearly informed defense counsel's cross-examination, which sought to emphasize the officer's failure to consider alternative theories and suggest to the jury that the investigation was flawed, which dispels the notion that defense counsel's failure to object “lacked a legitimate strategic purpose” (People v. Saunders, 220 A.D.3d 812, 813, 198 N.Y.S.3d 712 [2d Dept. 2023], lv denied 40 N.Y.3d 1041, 200 N.Y.S.3d 775, 223 N.E.3d 1251 [2023];  see People v. Lall, 223 A.D.3d 1098, 1110, 204 N.Y.S.3d 304 [3d Dept. 2024], lv denied 41 N.Y.3d 984, 210 N.Y.S.3d 735, 234 N.E.3d 351 [2024];  People v. Njoku, 218 A.D.3d 1047, 1052, 195 N.Y.S.3d 144 [3d Dept. 2023], lv denied 40 N.Y.3d 1093, 204 N.Y.S.3d 793, 228 N.E.3d 607 [2024]).  Similarly, defendant mischaracterizes the officer's testimony with respect to children's susceptibility to influence.  The officer did not definitively state that the victim in this case was not susceptible to influence;  rather, he acknowledged on cross-examination that minors were indeed more susceptible.  This type of general testimony did not constitute impermissible vouching for the victim's credibility.³  Accordingly, we find no merit to defendant's argument that counsel's failure to object in either instance constituted the type of singular error that requires reversal (see People v. Cook, 206 A.D.3d 1236, 1241, 170 N.Y.S.3d 305 [3d Dept. 2022];  People v. Mehmood, 112 A.D.3d 850, 852, 977 N.Y.S.2d 78 [2d Dept. 2013];  see also People v. Englert, 130 A.D.3d 1532, 1533–1534, 14 N.Y.S.3d 848 [4th Dept. 2015], lvs denied 26 N.Y.3d 967, 18 N.Y.S.3d 603, 40 N.E.3d 581 [2015], 26 N.Y.3d 1144, 32 N.Y.S.3d 58, 51 N.E.3d 569 [2016]).  Beyond defendant's claimed errors, our review of the record readily reflects that defense counsel made a pretrial motion that successfully obtained a reduction in the sole charge of the indictment, made appropriate opening and closing remarks, engaged in thorough direct and cross-examination during trial and otherwise pursued a cogent defense theory (see People v. Williams, 234 A.D.3d 1180, 1184, 227 N.Y.S.3d 460 [3d Dept. 2025], lv denied 43 N.Y.3d 966, 232 N.Y.S.3d 452, 258 N.E.3d 1225 [2025];  People v. Lopez, 226 A.D.3d 1165, 1166–1167, 209 N.Y.S.3d 622 [3d Dept. 2024], lv denied 42 N.Y.3d 905, 2024 WL 4229184 [2024];  People v. Wilkins, 216 A.D.3d 1359, 1364–1365, 189 N.Y.S.3d 820 [3d Dept 2023], lv denied 40 N.Y.3d 1000, 197 N.Y.S.3d 104, 219 N.E.3d 865 [2023];  see also People v. Barber, 13 A.D.3d 898, 902, 787 N.Y.S.2d 424 [3d Dept. 2004], lv denied 4 N.Y.3d 796, 795 N.Y.S.2d 171, 828 N.E.2d 87 [2005]).  Accordingly, we are satisfied that defense counsel provided competent representation.

ORDERED that the judgment is affirmed.

FOOTNOTES

1.   The trial testimony readily establishes that the victim was under the age of 13 and that defendant was more than 18 years of age during the 15–month period in question and, according to the victim, defendant engaged in multiple acts that would satisfy the definition of “sexual conduct” at least twice weekly during that period (see Penal Law § 130.00 [former (10)];  see also Penal Law § 130.00[3]).

2.   Although defendant initially contended that County Court committed a mode of proceedings error thereby obviating the need for preservation, he concedes in his reply brief that preservation was required.

3.   On redirect, the officer clarified that the younger a child victim was, the more susceptible he or she would be to influence, and that particular line of inquiry by the People was objected to by defense counsel.

McShan, J.

Garry, P.J., Ceresia, Fisher and Mackey, JJ., concur.