The People v. Luis A. Pabon , 28 N.Y.3d 147 ( 2016 )

This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 156
The People &c.,
Respondent,
v.
Luis A. Pabon,
Appellant.
Brian Shiffrin, for appellant.
Robert J. Shoemaker, for respondent.
RIVERA, J.:
Defendant Luis A. Pabon challenges his conviction upon
a nonjury verdict on the grounds that his prosecution is
untimely, the judge was exposed to inadmissible opinion testimony
prejudicial to the defense, and the judge erroneously refused to
sequester items essential to defendant's claims of judicial
misconduct. Contrary to defendant's argument, the tolling
provision of CPL 30.10 (3)(f) applies to his crime and as a
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result the indictment is not time-barred. Defendant's other
claims present no basis to overturn his conviction, or otherwise
disturb the decision below.
Defendant was indicted on one count of course of sexual
conduct in the first degree (Penal Law § 130.75 [1][a]) for acts
committed between 1998 and 1999 when he sexually assaulted AM,
the seven-year-old daughter of defendant's former lover.
Defendant was charged after AM disclosed the abuse to the police
in 2012, when she was 21 years old.
Before trial, defendant moved to dismiss the indictment
as time-barred. Supreme Court denied the motion, rejecting
defendant's argument that CPL 30.10 (3)(f) did not toll the
limitations period because such a reading would render the five
year limitations period in CPL 30.10 (3)(e) superfluous.
At defendant's nonjury trial, an investigating officer
testified that he believed defendant lied to him when defendant
denied the allegations during a post-arrest interview. Defense
counsel objected, asserting that the investigator could not
testify as to defendant's veracity because that was a matter to
be determined solely by the court. The judge overruled the
objection stating he was listening to the testimony and "not
taking [the investigator's] judgment."
Defense counsel also moved for a mistrial twice, based
on what counsel argued was inappropriate behavior by the judge
"sitting as the sole juror in the case." Specifically, counsel
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objected to what he assumed was the judge's reading of a document
not in evidence while the investigator testified and to the
judge's note-taking and alleged operation of a cell phone and a
computer during the trial. The court denied the mistrial
motions, as well as counsel's request that the judge sequester
his cell phone, computer, notes, and the document.
The Appellate Division affirmed the conviction, with
one justice dissenting (126 AD3d 1447 [4th Dept 2015]). As
relevant here, the court held that the indictment was not time-
barred because CPL 30.10 (3)(f) tolled the statute of limitations
for defendant's crime until the victim attained the age of 18.
The court further concluded that admission of the investigator's
opinion testimony was harmless error because "in a nonjury trial,
the court is presumed to be capable of disregarding any improper
or unduly prejudicial aspect of the evidence" (id. at 1448). The
court also summarily rejected defendant's claim that he was
denied appellate review by the judge's refusal to sequester the
named items (id. at 1449).
The dissent would have reversed and dismissed the
indictment as time-barred, concluding that application of CPL
30.10 (3)(f) to toll the five-year limitations period of CPL
30.10 (3)(e) would render the latter superfluous and ineffective
(id. at 1450). The dissenting justice granted defendant leave to
appeal (25 NY3d 1174 [DeJoseph, J., dissenting]).
Defendant claims his prosecution is time-barred because
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the applicable five-year limitations period set forth in CPL
former 30.10 (3)(e) expired before the filing of the felony
complaint, and the statute of limitations is not subject to
tolling under CPL 30.10 (3)(f). Defendant's argument is
unpersuasive, misconstrues the statutory provisions, and ignores
the relevant legislative history. The crime for which defendant
stands convicted is expressly encompassed by CPL 30.10 (3)(f),
and involves the type of conduct the legislature sought to
address by expansive, albeit delayed, prosecution of multiple
acts of sexual abuse against a minor.
It is well established that since "the clearest
indicator of legislative intent is the statutory language, the
starting point in any case of interpretation must always be the
language itself, giving effect to the plain meaning thereof"
(People v Golo, 26 NY3d 358, 361 [2015], citing Majewski v
Broadalbin-Perth Cent. Sch. Dist., 91 NY2d 577, 583 [1998]).
"[W]hen the statutory language is clear and unambiguous, it
should be construed so as to give effect to the plain meaning of
the words used" (People v Jones, 26 NY3d 730, 733 [2016]).
Further, "[a]ll parts of a statute must be harmonized with each
other as well as with the general intent of the whole statute,
and effect and meaning must, if possible, be given to the entire
statute and every part and word thereof" (McKinney's Cons Laws of
NY, Book 1, Statutes, § 98).
In 1996, the legislature enacted Penal Law § 130.75
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creating the crime for which defendant was convicted, course of
sexual conduct against a child in the first degree (L 1996, ch
122, § 6). At the same time the legislature added subsections
CPL 30.10 (3)(e) and (f). Subsection 30.10 (3)(e) provided, in
relevant part, that,
"A prosecution for course of sexual conduct
in the first degree as defined in section
130.75 of the penal law . . . may be
commenced within five years of the commission
of the most recent act of sexual conduct."
Subsection 30.10 (3)(f) tolls the limitations period in a
prosecution of a sex offense against a minor, and mandates,
"[f]or purposes of a prosecution involving a
sexual offense as defined in article one
hundred thirty of the penal law committed
against a child less than eighteen years of
age . . . the period of limitation shall not
begin to run until the child has reached the
age of eighteen or the offense is reported to
a law enforcement agency or statewide central
register of child abuse and maltreatment,
whichever occurs earlier."
In 2006, the legislature eliminated the statute of limitations in
CPL 30.10 (3)(e) for course of sexual conduct against a child in
the first degree, and in its place, by amendment to CPL 30.10
(2)(a), provided that prosecution of this crime "may be commenced
at any time" (CPL 30.10, as amended by L 2006, ch 3). The
legislature intended that the change apply retroactively to
offenses whose respective statutes of limitations had not expired
by the effective date of the amendment (2006 McKinney's Session
Laws of NY, ch 3, § 5 [June 2006]; see generally Stogner v
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California, 549 U.S. 607 [2003]).
By its plain language, and under prescribed
circumstances not challenged on this appeal, CPL 30.10 (3)(f)
tolls the period of limitations applicable to course of sexual
conduct against a child in the first degree, as defined in Penal
Law § 130.75 (1)(a). Defendant does not challenge the clarity of
the text or this direct line of analysis. Instead, defendant
claims that the application of this interpretation presents a
statutory conflict. As defendant sees it, because the tolling
provision in CPL 30.10 (3)(f) applies to the general five-year
statute of limitations in CPL 30.10 (2)(b), which governs all
non-class-A felonies including, by definition, defendant's crime,
and since his crime is a continuing crime, meaning the
limitations period would have commenced with the last act
committed, there is no circumstance under which the specific
limitations period in CPL 30.10 (3)(e) controls, rather than the
period in CPL 30.10 (2)(b). In that case, CPL 30.10 (e) serves
no purpose and is mere statutory surplus. Defendant argues this
result is in contravention of the rules of statutory
interpretation which require both that a statute be construed to
give meaning to all its words and that, where a conflict arises
between parts of a statute, the specific overrides the general.
To avoid this result, defendant claims that the tolling provision
in subdivision (f) should not apply to the statute of limitations
in subdivision (e).
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Defendant's proposed construction can neither be
squared with the text, legislative purpose, and history of the
relevant statutory provisions, nor can he find support in logic
and reason. Unlike CPL 30.10 (3)(e), which is a self-contained
statute of limitations, CPL 30.10 (3)(f) is a tolling provision
and as such is dependent on reference to time limits found
elsewhere in the statute. Defendant mistakenly equates the two
subsections -- as if they are both statutes of limitations --
when he claims they are in conflict and the specific provision of
CPL 30.10 (3)(e) overrides the general provision of CPL 30.10
(3)(f). The more apt comparison is to the two statutes of
limitations CPL 30.10 (3)(e) and 30.10 (2)(b), which harmoniously
coexist as a specific and general statute of limitations,
respectively, and which in no way lead to the conclusion promoted
by defendant, that CPL 30.10 (3)(e) is superfluous. Regardless,
there is no conflict obvious from the interplay of subsections
(3)(e) and (3)(f). One sets forth a five-year prosecution
deadline and the other explains when the clock begins to run on
that deadline.
Apart from this text-based analysis, our interpretation
of these subsections is also consistent with the purpose of the
1996 legislation and the 2006 amendment. The legislature created
the crime of course of sexual conduct against a child (Penal Law
§ 130.75) in order to address the difficulty in prosecuting
multiple sexual offenses committed against a child over an
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extended period of time. Under this Court's 1986 decision in
People v Keindl (68 NY2d 410 [1986]), in order to provide
sufficient notice to the defendant as to the crimes charged,
prosecutors needed to charge each instance of sexual assault
separately, and with specificity as to the intervals of the past
events (see People v Morris, 61 NY2d 290 [1984]; People v Watt,
84 NY2d 948 [1994]). Based on the reality that child victims are
less capable of providing specific detail as to the dates and
times of each sexual assault committed over an extended period
time, claims of continued abuse went unprosecuted because child
victims often could not remember the dates when the sexual
assaults had occurred or how many times they were assaulted in
that same period of time. In 1996, the legislature voted to
remove this impediment to the prosecution of those who commit
repeated sex crimes against minors during a period of time in
excess of three months. The 1996 amendment, which created the
crime of course of sexual conduct against a child and the five-
year statute of limitations set forth in CPL 30.10 (3)(e),
rendered repeated sexual assaults "continuing crimes," which "can
be prosecuted and proven regardless of whether child-victims can
specify the particular dates and times of the individual acts of
sexual conduct" (Governor's Program Bill #39R 1996 Memorandum).
Simply put, CPL 30.10 (3)(e) was intended to address the
obstacles to prosecution by recognizing that a series of multiple
sexual assaults of a child over an extended period of time is,
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indeed, a continuous crime.
The legislature also sought to address additional
barriers to prosecution by tolling the statutes of limitations.
As this Court has explained, at the time CPL 30.10 (3)(e) and (f)
were enacted,
"there was a widespread recognition that the
strictures of the limitations periods
pertaining to sex offenses against children
presented unique difficulties because many
child victims are hesitant or fearful of
disclosing such crimes, especially when the
sexual abuse is committed by a family member
or an individual in the child's household.
In response to these concerns, new laws
adding tolling provisions to the statutes of
limitations for sexual offenses against
children were enacted in 1996 as part of a
'major step' toward 'ensur[ing] that the law
provides the highest level of protection
possible to these most vulnerable victims'"
(People v Quinto, 18 NY3D 409, 412 [2012]
quoting Letter from President of Borough of
Queens, June 5, 1996, Bill Jacket, L 1996, ch
122, at 22 and Letter from Mayor of City of
NY, June 5, 1996, Bill Jacket, L 1996, ch
122, at 28).
As a consequence, "CPL 30.10 (3)(f) was a major component of the
legislative package" (Quinto, 18 NY3d at 413). This legislative
goal of,
"[d]elaying the commencement of the relevant
limitations period until the age of maturity
was intended to 'increase the likelihood that
young adults, recently freed from a position
of dependency, will disclose the offenses
committed against them in order to seek
redress through the criminal justice system'
and that this would 'also improve
opportunities for preventing recurrences of
the conduct by the perpetrator'" (id. at 413,
quoting Letter from Council on Children and
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Families, June 17, 1996, Bill Jacket, L 1996,
ch 122, at 18).
The language and history of the subsequent 2006
amendments to CPL 30.10 (3)(e) and (f) further illustrate that
the legislature could not have intended defendant's
interpretation. The 2006 amendment eliminated the limitations
period for course of sexual conduct against a child in the first
degree from CPL 30.10 (3)(e), and included it in CPL 30.10 (2)(a)
(CPL 30.10, as amended by L 2006, ch 320). Subsection 30.10(3)(f)
was also amended to toll the period of limitations for sexual
offenses defined in article 130, "other than sexual offenses
delineated in" CPL 30.10 (2)(a) (id. [emphasis added]). These
changes to the statutory scheme explicitly excluded course of
sexual conduct against a child in the first degree from CPL 30.10
(3)(f), meaning that the legislature must have understood CPL
30.10 (3)(f) to have applied to this crime prior to the
amendment. In other words, the legislature would not have
excluded a crime from CPL 30.10 (3)(f) unless it believed that
crime was previously within its ambit.*
The plain language of CPL 30.10 (3)(e) and (f), the
natural interplay between these provisions, and the legislative
history of the 1996 and 2006 amendments provide ample reasons to
*
Defendant attempts to obfuscate the obvious, that the
legislature could not make plainer its intent to extend the time
for prosecution of this crime, both by eliminating the statute of
limitations and by intending that the amendment have retroactive
application to the fullest extent permissible under the law.
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reject defendant's proposed interpretation, but there is also the
problem that defendant's construction leads to absurd results.
We carefully scrutinize this impact of defendant's approach
because courts are "governed by the principal that we must
interpret a statute so as to avoid an unreasonable or absurd
application of the law" (People v Garson, 6 NY3d 604, 614 [2006],
citing People v Santi, 3 NY3d 234, 244 [2004]). Indeed, "courts
have repeatedly rejected statutory constructions that are
unconscionable or antithetical to legislative objectives" (Matter
of New York State Assn. of Criminal Defense Lawyers v Kaye, 96
NY2d 512, 519 [2001]).
Two examples illustrate why the interpretation
defendant advocates is untenable. First, if we applied
defendant's reading to the statute, it would mean that the People
could not prosecute a defendant in the case of a victim sexually
abused from ages three to four who discloses at 16, because the
statute of limitations would have expired when the child turned
nine, rather than 23, the age which would start the limitations
clock running if crimes referenced in CPL 30.10(3)(e) were tolled
under CPL 30.10(3)(f). Certainly the legislature, set on
removing obstacles to prosecutions and recognizing "child victims
are hesitant or fearful of disclosing such crimes" (Quinto, 18
NY3d at 412), could not have intended the statute to foreclose
prosecution in such a case. Second, under defendant's approach
prosecutions of single abuse cases would be tolled, while those
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involving multiple acts against a minor would be barred five
years after the last act. Meaning that, had defendant been
accused of sexually abusing AM just once, he could have been
prosecuted up to and until 2015, but, having been accused of
continued sexual abuse over a three-month period, his prosecution
was entirely foreclosed after 2004. Defendant's interpretation
thereby does less to prevent a recurrence of sexual abuse of
children than to incentivize a child abuser to commit multiple
acts. Such interpretation is "unconscionable or antithetical to
[the] legislative objectives" (Assn. of Criminal Defense Lawyers,
96 NY2d at 519) of "improv[ing] opportunities for preventing
recurrences of the conduct by the perpetrator" (Quinto, 18 NY3d
at 413 [internal citation and quotation marks omitted]).
In sum, application of CPL 30.10 (3)(f) to crimes
described in CPL 30.10 (3)(e) conforms with the statutory text
and furthers the legislative goal of those statutes by tolling
the limitations period. Therefore, defendant's prosecution is
not time-barred.
Defendant's alternative claim that the trial judge's
admission of irrelevant testimony warrants a new trial is
unpersuasive because the error was harmless. As the Appellate
Division correctly determined, the judge should not have admitted
the investigator's opinion testimony that defendant lied to him
during the interview (see People v Ciaccio, 47 NY2d 431, 439
[1979]["(i)t is always within the sole province of the jury to
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decide whether the testimony of any witness is truthful or
not"]). Instead, the appropriate course would have been for the
judge to sustain defense counsel's objection and preclude or
strike the testimony. Nevertheless, the Appellate Division has
applied a presumption that a court in a nonjury trial will
disregard improper evidence because judges, unlike jurors, are
sufficiently well-versed in the law to understand rules of
evidence and, in the case of a bench trial, may be presumed to
rely only on admissible evidence (see e.g. People v Cobb, 294
AD2d 199, 200 [1st Dept 2002]; People v Livingston, 184 AD2d 529
[2d Dept 1992]; People v Maxam, 161 AD2d 961 [3d Dept 1990];
People v LoMaglio, 124 AD3d 1414 [4th Dept 2015]). In the same
vein, this Court in People v Moreno, (70 NY2d 403, 406 [1987],
quoting People v Brown, 24 NY2d 168, 172 [1969]), has recognized
that a judge, "'by reasons of his learning, experience and
judicial discipline is uniquely capable of distinguishing the
issues and of making an objective determination' based upon
appropriate legal criteria, despite awareness of facts which
cannot properly be relied upon making the decision." Defendant
argues that this presumption does not apply when a judge
erroneously admits evidence because, by admitting it, the judge
has revealed a misunderstanding regarding the evidence's proper
use.
We need not resolve the applicability of the
presumption recognized by the Appellate Division as a general
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matter because the underlying rationale for such a presumption
does not logically extend to this case, where the judge
erroneously allowed inadmissible evidence over proper objection.
Absent some reliable indication that, notwithstanding the
erroneous ruling, the judge knows that the evidence must be
disregarded, we cannot presume the judge, acting as the finder of
fact, will forego consideration of the evidence during the course
of the trial or in reaching a verdict (cf. People v Smith, 18
NY3d 544, 552 [2012][judge's erroneous admission of evidence
warranted reversal because the judge "clearly relied" on the
evidence and it "led to the conviction"]). Here, the judge's on-
the-record statement that he was "not taking [the investigator's]
judgment," provides sufficient assurance that he was not adopting
the investigator's assessment of defendant's honesty. Therefore,
the erroneous admission of the testimony was harmless.
We also reject defendant's remaining claim that the
judge's denial of his mistrial motions and request to sequester
the judge's notes, cell phone, computer, and unidentified
document deprived defendant of proper appellate review.
Defendant contends that in a bench trial the judge sits as a jury
and is therefore subject to the same limitations as any juror,
meaning the judge may not look at unadmitted documents, take
notes, or use electronic devices during the proceedings.
Defendant ignores that in a nonjury trial the judge serves in
dual roles, and while sitting as the fact-finder the judge
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continues to be responsible for all the judicial obligations
attendant to overseeing a trial. Thus, a judge may take notes
and rely on technological instruments to facilitate the proper
discharge of these judicial duties.
To the extent defendant claims the judge misused items
defendant sought to have sequestered or, as his arguments imply,
that the judge was distracted and failed to give proper
consideration to the evidence, his claims are unsupported by the
record. Trial counsel admitted he did not know the nature or
content of the document the judge was holding and, as the record
shows, the judge indicated that although he did not know what
document counsel was referencing, he assured him that he was in
fact listening to the testimony. Additionally, counsel failed to
object at the time of the alleged misuse of the notes and
electronic devices, and based his subsequent mistrial motion on
mere observations of the judge's possession and unspecified
operation of the phone and computer. Under these circumstances,
we perceive no abuse of discretion in the trial judge's denial of
defendant's motions for mistrial and to sequester the named items
(see Harris v Village of E. Hills, 41 NY2d 446, 451 [1977]; see
also People v Rice, 75 NY2d 929, 933 [1990]).
Accordingly, the order of the Appellate Division should
be affirmed.
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People v Luis A. Pabon
No. 156
PIGOTT, J. (concurring):
I would affirm for reasons stated in the memorandum of
the Appellate Division (126 AD3d 1447).
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Order affirmed. Opinion by Judge Rivera. Chief Judge DiFiore
and Judges Abdus-Salaam, Stein and Fahey concur. Judge Pigott
concurs in result in an opinion in which Judge Garcia concurs.
Decided November 1, 2016
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