PEOPLE v. CRUZ (2007)

Appeal from a judgment of the County Court of Rensselaer County (Czajka, J.), rendered May 21, 2004, upon a verdict convicting defendant of the crimes of sodomy in the first degree (four counts), sexual abuse in the first degree (12 counts) and endangering the welfare of a child (two counts).

Following a jury trial, defendant was convicted of four counts of sodomy in the first degree, 12 counts of sexual abuse in the first degree and two counts of endangering the welfare of a child stemming from his inappropriate sexual contact with the 10-year-old daughter of his girlfriend.¹  He was thereafter sentenced to maximum consecutive sentences which resulted in an aggregate sentence of 100 years in prison.   He now appeals.

Defendant argues, and the People concede, that eight of the sexual abuse counts are multiplicitous (see People v. Moffitt, 20 A.D.3d 687, 690-691, 798 N.Y.S.2d 556 [2005], lv. denied 5 N.Y.3d 854, 806 N.Y.S.2d 174, 840 N.E.2d 143 [2005] ).   Although this precise claim was not properly preserved by an appropriate motion to dismiss (see CPL 200.20[1];  210.20[1][a];  210.25 [1];  see also CPL 470.05[2] ), given the People's concession, we will exercise our interest of justice jurisdiction (see CPL 470.15[3][c];  [6] [a];  People v. Crowley, 34 A.D.3d 866, 867, 823 N.Y.S.2d 561 [2006], lv. denied 7 N.Y.3d 924, 827 N.Y.S.2d 693, 860 N.E.2d 995 [2006];  People v. Raymo, 19 A.D.3d 727, 728-729, 796 N.Y.S.2d 448 [2005], lv. denied 5 N.Y.3d 793, 801 N.Y.S.2d 814, 835 N.E.2d 674 [2005];  People v. Butler, 273 A.D.2d 613, 614-615, 711 N.Y.S.2d 525 [2000], lv. denied 95 N.Y.2d 933, 721 N.Y.S.2d 609, 744 N.E.2d 145 [2000];  People v. Sasso, 176 A.D.2d 410, 411, 574 N.Y.S.2d 116 [1991] ) and dismiss them (see People v. Nailor, 268 A.D.2d 695, 696 n. 1, 701 N.Y.S.2d 476 [2000] ).   However, upon our review of the trial evidence and upon proper application of the applicable standards of review, we are unpersuaded that the evidence on the remaining counts was legally insufficient or that the verdict was against the weight of the evidence (see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).

Testimony at trial established that defendant and the victim's mother knew each other for 10 years before becoming romantically involved in the fall of 2001 and moving in together.   In November 2001, they, along with the victim and her younger sister, moved into a new house in a new neighborhood.   According to the victim, on four particular occasions between December 2, 2001 and January 28, 2002 at this new house, defendant kissed her on the mouth, placed his hands on her breasts and placed his finger and tongue into her vagina.   According to the victim, she was able to recall these particular dates because she wrote them down on a piece of paper following each incident.

Moreover, according to the victim, she told a friend about the abuse sometime in December 2001 when that friend visited her for the first time at the new house, and she finally told her father about it on February 5, 2002.   The next day, the victim agreed to place a controlled telephone call to defendant at his place of employment.   This call was monitored and recorded by a senior State Police investigator, admitted into evidence over defense objections and played to the jury.   During the conversation, while defendant indeed denied the victim's specific accusations of inappropriate sexual contact, he nevertheless instructed her “[not to] tell anybody,” forewarned her three times that things would go “crazy” if she told, informed her that she would get in trouble for telling, asked her “[not to] say anything, ․ [b]ecause it could be very danger[ous] for everybody” and further asked her to “[t]hink about your mother, think about yourself, think about your father, think of everybody.”

 Viewing this evidence in a light most favorable to the People, we find that there is a valid line of reasoning and permissible inferences which could lead the jury to conclude that the elements of each of the remaining charged crimes were proven beyond a reasonable doubt (see id.;  People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 [1983] ).   Moreover, despite defendant's testimony denying any inappropriate sexual contact with the victim and denying that he even had the opportunity to do so given his work schedule and the layout of their small ranch house, the jury's verdict was not against the weight of the evidence (see CPL 470.15[5] ).   The conflicting testimony between defendant and the victim presented a quintessential credibility clash that typically occurs in cases of this nature and, upon the exercise of our factual review power, we find no basis upon which to disagree with the jury's resolution of credibility in favor of the victim nor can we conclude that the jury failed to give the evidence the weight it should be accorded (see e.g. People v. DeCicco, 38 A.D.3d 937, 937-938, 830 N.Y.S.2d 837 [2007];  People v. Wallis, 24 A.D.3d 1029, 1031, 806 N.Y.S.2d 760 [2005], lv. denied 6 N.Y.3d 854, 816 N.Y.S.2d 760, 849 N.E.2d 983 [2006];  People v. Boyce, 2 A.D.3d 984, 985-986, 769 N.Y.S.2d 620 [2003], lv. denied 2 N.Y.3d 796, 781 N.Y.S.2d 295, 814 N.E.2d 467 [2004];  People v. Soulia, 263 A.D.2d 869, 872-873, 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];  People v. Roach, 263 A.D.2d 763, 693 N.Y.S.2d 312 [1999], lv. denied 93 N.Y.2d 1045, 697 N.Y.S.2d 877, 720 N.E.2d 97 [1999];  People v. Van Nostrand, 217 A.D.2d 800, 803, 630 N.Y.S.2d 101 [1995], lv. denied 87 N.Y.2d 851, 638 N.Y.S.2d 610, 661 N.E.2d 1393 [1995] ).

 Next, we find no error in permitting the People to introduce the taped telephone call between defendant and the victim into evidence as that conversation contained statements by defendant that were “sufficiently inculpatory to warrant admission [into evidence]” (People v. Swart, 273 A.D.2d 503, 504, 709 N.Y.S.2d 653 [2000], lv. denied 95 N.Y.2d 908, 716 N.Y.S.2d 649, 739 N.E.2d 1154 [2000] ) as admissions on his part (see People v. Johnson, 250 A.D.2d 922, 928, 673 N.Y.S.2d 755 [1998], affd. 93 N.Y.2d 254, 689 N.Y.S.2d 689, 711 N.E.2d 967 [1999];  People v. Burke, 96 A.D.2d 971, 971-972, 466 N.Y.S.2d 867 [1983], affd. 62 N.Y.2d 860, 477 N.Y.S.2d 618, 466 N.E.2d 158 [1984];  see also People v. Bretagna, 298 N.Y. 323, 326, 83 N.E.2d 537 [1948], cert. denied 336 U.S. 919, 69 S.Ct. 642, 93 L.Ed. 1082 [1949];  Prince, Richardson on Evidence §§ 8-201, 8-204 [Farrell 11th ed.] ).   Moreover, since the victim's testimony constituted direct evidence of defendant's guilt (see People v. Butler, 132 A.D.2d 771, 772, 517 N.Y.S.2d 580 [1987], lv. denied 70 N.Y.2d 873, 523 N.Y.S.2d 500, 518 N.E.2d 11 [1987];  People v. Burke, supra at 972, 466 N.Y.S.2d 867), County Court correctly denied defendant's request for a circumstantial evidence charge.   Thus, his claim that a new trial is warranted under People v. Sanchez, 92 A.D.2d 595, 459 N.Y.S.2d 488 [1983], affd. 61 N.Y.2d 1022, 475 N.Y.S.2d 376, 463 N.E.2d 1228 [1984] is unpersuasive.

 We are persuaded, however, that defendant's sentence is harsh and excessive under the particular facts of this case, warranting reduction by this Court in the interest of justice (see CPL 470.15[2][c];  [6][b] ).  While defendant's conduct against the victim was abhorrent, he has no prior criminal history (other than a traffic infraction) which would warrant the imposition of maximum consecutive sentences aggregating 100 years in prison (albeit reduced to 50 years pursuant to Penal Law §§ 70.30) (see People v. Nickel, 14 A.D.3d 869, 872-873, 788 N.Y.S.2d 274 [2005], lv. denied 4 N.Y.3d 834, 796 N.Y.S.2d 589, 829 N.E.2d 682 [2005];  compare People v. Kuklinski, 24 A.D.3d 1036, 1037, 805 N.Y.S.2d 729 [2005], lv. denied 7 N.Y.3d 758, 819 N.Y.S.2d 883, 853 N.E.2d 254 [2006];  People v. Brown, 24 A.D.3d 884, 888, 806 N.Y.S.2d 262 [2005], lv. denied 6 N.Y.3d 832, 814 N.Y.S.2d 80, 847 N.E.2d 377 [2006];  People v. Williams, 24 A.D.3d 882, 884, 806 N.Y.S.2d 266 [2005], lv. denied 6 N.Y.3d 854, 816 N.Y.S.2d 760, 849 N.E.2d 983 [2006];  People v. Love, 307 A.D.2d 528, 533, 762 N.Y.S.2d 162 [2003], lv. denied 100 N.Y.2d 643, 769 N.Y.S.2d 209, 801 N.E.2d 430 [2003];  People v. Chilson, 285 A.D.2d 733, 735-736, 728 N.Y.S.2d 550 [2001], lv. denied 97 N.Y.2d 640, 735 N.Y.S.2d 497, 761 N.E.2d 2 [2001];  People v. Fox, 274 A.D.2d 665, 666, 711 N.Y.S.2d 220 [2000];  People v. Smith, 272 A.D.2d 713, 716, 710 N.Y.S.2d 648 [2000], lv. denied 95 N.Y.2d 871, 715 N.Y.S.2d 226, 738 N.E.2d 374 [2000] ).   While the People argue that the sentence should not be reduced by this Court, we are compelled to observe that the People had agreed to a plea deal of time served and probation prior to this trial (see n. 1, supra ).   We therefore modify defendant's sentence in the interest of justice by directing that the sentences for the four sodomy counts run concurrently to each other and to the sentences for the four consecutive sexual abuse counts (see e.g. People v. Nickel, supra at 873, 788 N.Y.S.2d 274;  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];  People v. Joye, 198 A.D.2d 21, 603 N.Y.S.2d 131 [1993], lv. denied 83 N.Y.2d 854, 612 N.Y.S.2d 386, 634 N.E.2d 987 [1994];  People v. Tortorice, 142 A.D.2d 916, 919, 531 N.Y.S.2d 414 [1988] ).   Defendant will thus serve an aggregate sentence of 28 years in prison for his crimes, a sentence which appropriately takes into account the heinous nature of his conduct (compare People v. White, 27 A.D.3d 884, 887, 811 N.Y.S.2d 473 [2006], lv. denied 7 N.Y.3d 764, 819 N.Y.S.2d 890, 853 N.E.2d 261 [2006];  People v. Dalton, 27 A.D.3d 779, 783, 811 N.Y.S.2d 153 [2006], lv. denied 7 N.Y.3d 754, 819 N.Y.S.2d 880, 853 N.E.2d 251 [2006];  People v. Kuklinski, supra;  People v. Brown, supra;   People v. Chilson, supra )

We have reviewed defendant's remaining contentions and find them without merit.

ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by reversing defendant's convictions of sexual abuse in the first degree under counts 3, 4, 8, 9, 13, 14, 18 and 19 of the indictment;  said counts dismissed and defendant's sentences for the four counts of sodomy in the first degree shall run concurrently to one another and to the four consecutive sentences for sexual abuse in the first degree;  and, as so modified, affirmed.

FOOTNOTES

1.   This was the second trial for defendant;  his first ended in a mistrial after the jury could not reach a verdict.   Following the first trial, a plea agreement was reached between the People and defendant pursuant to which he would plead guilty to one count of sexual abuse in satisfaction of the 22-count indictment in exchange for a sentence of time served and 10 years of probation.   County Court, however, refused to accept this offer and defendant proceeded to the second trial.

CARPINELLO, J.

CARDONA, P.J., MERCURE, CREW III and PETERS, JJ., concur.