PEOPLE v. SHOOK

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Supreme Court, Appellate Division, Third Department, New York.

The PEOPLE of the State of New York, Respondent, v. Robert F. SHOOK, Appellant.

Decided: May 16, 2002

Before:  CARDONA, P.J., MERCURE, CARPINELLO, MUGGLIN and ROSE, JJ. Catherine A. Barber, Schenectady, for appellant. Beth G. Cozzolino, District Attorney, Hudson (Kenneth L. Golden of counsel), for respondent.

Appeal from a judgment of the County Court of Columbia County (Czajka, J.), rendered November 14, 2000, upon a verdict convicting defendant of the crimes of sexual abuse in the first degree (three counts) and endangering the welfare of a child.

Defendant was indicted for sexual abuse in the first degree (three counts) and endangering the welfare of a child stemming from incidents allegedly occurring in 1999 with the then 10-year-old son of his former girlfriend.   Defendant was arraigned on June 14, 2000, at which time he was advised by County Court that any pretrial hearings would be held on October 13, 2000 and the trial would begin on October 16, 2000.   In addition, County Court advised defendant, “If you are not present, I will assume you are giving up your right to be present and have the hearings and trial without you.   Do you understand that?”   Defendant replied in the affirmative.

Thereafter, Supreme Court (Connor, J.) granted defendant's writ of habeas corpus and reduced his bail to $10,000.   Defendant posted bail and was released.   Subsequently, County Court, following a hearing, revoked his bail upon finding that defendant's violation of an order of protection demonstrated that he would not comply with court orders to appear when directed.   However, Supreme Court granted another writ of habeas corpus and reinstated defendant's bail.

On October 13, 2000, defendant failed to appear for his Huntley hearing.   County Court recessed the hearing, revoked defendant's bail, issued a warrant for his arrest, sent police to his place of employment and his home, and requested that defense counsel call anyone who could help locate defendant.   The court then held a Parker hearing at which Kevin Skype, a City of Hudson Police Officer, testified.   Skype related a conversation with defendant's girlfriend who stated that defendant left for North Carolina at 11:30 A.M. the previous day.   As a result, the court proceeded to conduct the Huntley hearing in defendant's absence.   When defendant also failed to appear for trial, he was tried in absentia and found guilty as charged.   Thereafter, he was sentenced in absentia to consecutive determinate prison terms of seven years upon each of his three convictions for sexual abuse in the first degree and a concurrent one-year definite term upon his conviction of endangering the welfare of a minor.   Defendant appeals.

 Defendant argues that County Court failed to make reasonable efforts to locate him before conducting the proceedings in his absence.1  We find that County Court expended reasonable efforts to secure defendant's attendance at trial.   The trial in absentia proceeded only after it became apparent that “a further adjournment pending execution of the bench warrant would not likely result in locating [him] within a reasonable period of time” (People v. Sumner, 254 A.D.2d 537, 538, 681 N.Y.S.2d 611).   In fact, defendant was not found until he surrendered to authorities in Texas subsequent to his sentencing.

 Next, defendant contends that the jury's verdict convicting him of three counts of sexual abuse in the first degree was not supported by legally sufficient evidence.   When a claim of legal insufficiency is made, we examine the evidence “ ‘ * * * in a light most favorable to the People * * * to determine whether there is a valid line of reasoning and permissible inferences from which a rational jury could have found the elements of the crime proved beyond a reasonable doubt’ ” (People v. Acosta, 80 N.Y.2d 665, 672, 593 N.Y.S.2d 978, 609 N.E.2d 518, quoting People v. Steinberg, 79 N.Y.2d 673, 681-682, 584 N.Y.S.2d 770, 595 N.E.2d 845;  see, People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932).

A person commits sexual abuse in the first degree when he or she subjects another person under the age of 11 years to sexual contact (see, Penal Law § 130.65[3] ).   Here, the victim testified that on three occasions in 1999, when he was 10 years old, defendant placed his hand into the victim's underwear and touched his “privates”.   The victim indicated that, during the first incident, defendant pulled his underwear down.   During the others, defendant slipped his hand into the victim's underpants tickling and touching his privates playing a game called “where's George”, “George” being defendant's name for the victim's privates.   Immediately following the first incident, defendant warned the victim not to tell anyone or he would be harmed.   We find that the foregoing evidence presented a valid line of reasoning together with permissible inferences from which any rational jury could find defendant guilty beyond a reasonable doubt of all the essential elements of the crime of sexual abuse in the first degree (see, Penal Law § 130.65[3];  People v. Stickles, 267 A.D.2d 604, 605, 700 N.Y.S.2d 248, lv. dismissed 95 N.Y.2d 839, 713 N.Y.S.2d 146, 735 N.E.2d 426).

 Next, we address defendant's argument that the verdict was against the weight of the evidence.   Initially, we note that although there were some inconsistencies between the testimonies of the victim and the other child witness, they were not such as would render either witness's testimony unworthy of belief as a matter of law (see, People v. Smith, 272 A.D.2d 713, 715-716, 710 N.Y.S.2d 648, lv. denied 95 N.Y.2d 871, 715 N.Y.S.2d 226, 738 N.E.2d 374).   Furthermore, while it may be argued that a different verdict would not have been unreasonable based upon the evidence, upon “ ‘weigh[ing] the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony’ ” (People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672, quoting People ex rel. MacCracken v. Miller, 291 N.Y. 55, 62, 50 N.E.2d 542), we find that the jury gave the evidence the weight it should be accorded (see, People v. Bleakley, supra, at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672;  People v. Stokes, 290 A.D.2d 71, 73-74, 736 N.Y.S.2d 781).

 We turn to defendant's contention that County Court erred in admitting the details of the victim's complaint of the first incident through the testimony of another child witness in whom the victim confided, as a prompt outcry exception to the rule against admission of prior consistent statements (see, People v. McDaniel, 81 N.Y.2d 10, 16-18, 595 N.Y.S.2d 364, 611 N.E.2d 265;  People v. Rice, 75 N.Y.2d 929, 932, 555 N.Y.S.2d 677, 554 N.E.2d 1265). Since defendant failed to object to the admissibility of this testimony at trial, did not move to strike it or seek an appropriate limiting instruction (see, People v. Pace, 145 A.D.2d 834, 836, 535 N.Y.S.2d 821, lv. denied 73 N.Y.2d 894, 538 N.Y.S.2d 807, 535 N.E.2d 1347), we find the issue not preserved for appellate review (see, CPL 470.05;  People v. Archer, 232 A.D.2d 820, 822, 649 N.Y.S.2d 204, lv. denied 89 N.Y.2d 1087, 660 N.Y.S.2d 381, 682 N.E.2d 982;  People v. Pace, supra, at 836, 535 N.Y.S.2d 821).   Furthermore, we decline to exercise our interest of justice jurisdiction to take any corrective action (see, CPL 470.15[6][a];  470.20 [1] ).

 Defendant also contends that County Court improperly considered its determination that defendant violated the Hudson City Court's order of protection when it imposed sentence.   A defendant is deprived of due process when he or she is sentenced “on the basis of ‘ “materially untrue” assumptions or “misinformation” ’ ” (People v. Naranjo, 89 N.Y.2d 1047, 1049, 659 N.Y.S.2d 826, 681 N.E.2d 1272, quoting United States v. Pugliese, 805 F.2d 1117, 1123, quoting Townsend v. Burke, 334 U.S. 736, 741, 68 S.Ct. 1252, 92 L.Ed. 1690).   As long as the sentencing court bases the sentence on reliable and accurate information, due process will be satisfied (see, People v. Naranjo, supra, at 1049, 659 N.Y.S.2d 826, 681 N.E.2d 1272;  People v. Outley, 80 N.Y.2d 702, 712, 594 N.Y.S.2d 683, 610 N.E.2d 356).

Testimony at defendant's bail revocation hearing indicated, inter alia, that, subsequent to his arrest, he drove by the victim's home four times, slowed down on two of those occasions and laughed in the direction of the victim's mother while she and the victim were outside.   County Court found this conduct violative of City Court's order of protection, which had apparently directed defendant to stay away from the victim's home,2 and used it as a basis for revoking defendant's bail.   Supreme Court thereafter granted defendant's writ of habeas corpus and reinstated his bail, finding, inter alia, that the absence of a petition alleging a violation of the order of protection was contrary to defendant's right to due process.

 Prior to sentencing defendant, County Court stated that it “cannot ignore the hearing that it held prior to trial, after which it was determined that the defendant violated the City Court's Order of Protection put in place * * * to protect the child”.   We find that Supreme Court's determination to reinstate bail did not render materially untrue the underlying facts related by the People's witnesses at the bail revocation hearing to the effect that defendant had impermissible contact with the victim's family.   Thus, we cannot say that County Court based defendant's sentence upon unreliable and inaccurate information in violation of his right to due process.

 Finally, defendant argues that the imposition of three consecutive determinate seven-year prison terms was unduly harsh and excessive.   Since each sexual abuse charge was a separate and distinct act, the imposition of consecutive sentences was legally authorized (see, People v. Laureano, 87 N.Y.2d 640, 643, 642 N.Y.S.2d 150, 664 N.E.2d 1212;  People v. Harmon, 264 A.D.2d 941, 942, 695 N.Y.S.2d 758).   Moreover, the term of imprisonment for each is within the statutorily permissible range which provides for a minimum determinate prison term of two years and a maximum determinate prison term of seven years (see, Penal Law § 70.02[1][c];  [3] [c], as amended L. 1998, ch. 1, § 7).   Although, this Court has broad plenary power to modify a sentence in the interest of justice even if it is within the permissible statutory parameters (see, People v. Delgado, 80 N.Y.2d 780, 783, 587 N.Y.S.2d 271, 599 N.E.2d 675;  People v. Demeritt, 291 A.D.2d 726, 728, 738 N.Y.S.2d 727, 731;  People v. Sheppard, 273 A.D.2d 498, 708 N.Y.S.2d 740, lv. denied 95 N.Y.2d 908, 716 N.Y.S.2d 649, 739 N.E.2d 1154;  see also, CPL 470.15[6][b] ), “our intrusion into [that] discretionary area * * * should rarely be exercised” (People v. Sheppard, supra, at 500, 708 N.Y.S.2d 740).   Here, defendant repeatedly exploited his young victim's trust and threatened harm in the event of disclosure.   We are of the opinion that County Court did not abuse its sentencing discretion nor do we find extraordinary circumstances warranting a reduction in defendant's sentence (see, People v. Stickles, 267 A.D.2d 604, 607, 700 N.Y.S.2d 248, supra ).

We have considered defendant's remaining contentions and find that they lack merit.

ORDERED that the judgment is affirmed.

FOOTNOTES

1.   Defendant does not challenge the propriety of the Parker admonishment itself.

2.   The record does not contain the order of protection issued by City Court.

CARDONA, P.J.

MERCURE, CARPINELLO, MUGGLIN and ROSE, JJ., concur.

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