People v. Ressy , 35 N.Y.S.3d 762 ( 2016 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: July 14, 2016 106624
________________________________
THE PEOPLE OF THE STATE OF
NEW YORK,
Respondent,
v MEMORANDUM AND ORDER
PEDRO RESSY, Also Known as
ALEX RESSY,
Appellant.
________________________________
Calendar Date: May 23, 2016
Before: Garry, J.P., Egan Jr., Lynch, Devine and Mulvey, JJ.
__________
Thomas F. Garner, Middleburgh, for appellant.
James E. Conboy, District Attorney, Fonda (Sarah J.
Leszczynski of counsel), for respondent.
__________
Egan Jr., J.
Appeal from a judgment of the County Court of Montgomery
County (Catena, J.), rendered June 20, 2013, upon a verdict
convicting defendant of the crimes of course of sexual conduct
against a child in the first degree (two counts) and endangering
the welfare of a child (four counts).
In September 2012, defendant, who was born in 1977, was
charged in a six-count indictment stemming from allegations of
repeated abuse of victim A (born in 2005), victim B (born in
2005), victim C (born in 2003) and victim D (born in 2002) – all
of whom were the children of defendant's then live-in paramour.
Specifically, defendant was charged with two counts of course of
sexual conduct against a child in the first degree, alleging that
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he engaged in two or more acts of sexual conduct with victim A
and victim B, both of whom were less than 11 years of age, and
four counts of endangering the welfare of a child as it pertained
to victims A, B, C and D. After hearing the testimony offered
by, among others, all four victims, their siblings and their
mother, the latter of whom testified on behalf of defendant, the
jury found defendant guilty of all charges. County Court
thereafter sentenced defendant to an aggregate prison term of 44
years – consisting of a prison term of 20 years followed by 20
years of postrelease supervision on each count of course of
sexual conduct against a child in the first degree and one year
with respect to each count of endangering the welfare of a child,
which sentences were to run consecutively. This appeal by
defendant ensued.
Defendant initially challenges the legal sufficiency of the
evidence supporting the conviction with respect to the two counts
alleging course of sexual conduct against victim A and victim B.
While we find that defendant's legal sufficiency argument was not
preserved by his general motion to dismiss at trial (see People v
Cruz, 131 AD3d 724, 724 [2015], lv denied 26 NY3d 1087 [2015];
People v Heyliger, 126 AD3d 1117, 1118 [2015], lv denied 25 NY3d
1165 [2015]), defendant also contends that the verdict convicting
him of each of the charged crimes is against the weight of the
evidence and, therefore, we necessarily review the evidence
presented as to each element of the crimes charged (see People v
Danielson, 9 NY3d 342, 349 [2007]; People v Luckette, 126 AD3d
1044, 1045 [2015], lv denied 26 NY3d 1110 [2016]; People v
Santiago, 118 AD3d 1163, 1164 [2014], lv denied 24 NY3d 964
[2014]). In this regard, to the extent that the charged crimes
contained specific age requirements for the victims (see Penal
Law §§ 130.75 [1] [a]; 260.10 [1]), we find that the testimony
adduced at trial established that the ages of all four victims
satisfied the requirements embodied in the crimes at issue.
With respect to the charges of course of sexual conduct
against victim A and victim B, each victim testified that
defendant had subjected them to repeated sexual conduct in their
mother's room at several residences during certain intervals over
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the course of approximately two years.1 At trial, victim A and
victim B, both of whom then were eight years old, testified that
defendant began his abuse by exposing them to pornographic
movies. Defendant then progressed from compelling victim A to
watch pornography to, among other acts, "put[ting] his penis in
[the victim's] butt and touch[ing the victim's] penis." Although
victim A did not provide specific dates, he remembered the street
names of the residences where the abuse occurred and testified
that defendant subjected him to anal sexual conduct at least five
times while they resided at one particular location. The
testimony of victim A's father and the parties' stipulation
established that such abuse occurred between April 2011 and June
2011. In addition, victim A testified to at least one instance
in which his mother was lying on the bed and watched as defendant
"touched" him. Victim A also testified that, on one occasion,
victim C "snuck[]" into his mother's room and "crawled under the
bed" while defendant was abusing him and, on another occasion,
victim D was "slamming on the door peeking through the hole at
the bottom" while defendant was making him watch pornographic
movies – all of which was corroborated by the testimony of victim
C and victim D, respectively. Finally, although defendant
attempted to portray victim A's testimony as rehearsed or
coached, victim A denied that he had been instructed as to how to
describe the manner or the frequency of the abuse.
Similarly, victim B testified that defendant perpetrated
several acts of sexual conduct against him at two different
locations where the family resided. Specifically, victim B
testified that defendant sodomized him when he was asleep, which
caused him to bleed. Victim B also testified that, at one
residence, defendant inserted his penis "[w]here you go poop" on
approximately five occasions. Based on the testimony adduced at
trial, these incidents occurred between April 2009 and February
1
Due to defendant's multiple periods of incarceration, the
People and defendant stipulated that there were "certain definite
time periods when the [d]efendant may have had physical access to
the subject children" – specifically, August 10, 2007 through
October 9, 2007, April 9, 2009 through February 18, 2010 and
April 18, 2011 through an undefined date in June 2011.
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2010. Further, victim B testified that, while at another
residence, defendant committed anal sexual conduct against him on
approximately four occasions during which his mother was present.
Again, other testimony at trial established that such abuse
occurred between April 2011 and June 2011. Finally, both victim
A and victim B recalled that defendant played music at a high
volume in order to conceal the sounds of the abuse when their
other siblings were present at the same residence.
Upon consideration of the foregoing evidence, and granting
deference to the jury's credibility determinations, we are
satisfied that the jury's verdict as to these counts is in accord
with the weight of the evidence (see People v Monroe, 134 AD3d
1138, 1140 [2015]; People v Hayes, 104 AD3d 1050, 1054-1055
[2013], lv denied 22 NY3d 1041 [2013]). While acknowledging that
references to their "private," "privacy" or "bottom" included
another term that corresponded to their genital or anal area,
both victim A and victim B provided detailed testimony regarding
the multiple incidents in which defendant engaged in anal sexual
conduct with them. Although defendant contends that the absence
of any physical or other evidence to corroborate these victims'
claims of abuse is dispositive, these issues were fully explored
at trial and the jury plainly credited their testimony on this
point. Accordingly, we find no basis upon which to disturb
defendant's conviction as to the two counts of course of sexual
conduct against a child as to victim A and victim B (see People v
Gregory, 78 AD3d 1246, 1248 [2010], lv denied 16 NY3d 831 [2011];
People v Stewart, 60 AD3d 1111, 1113 [2009], lv denied 12 NY3d
860 [2009]).
We reach a similar conclusion as to the four counts of
endangering the welfare of a child with respect to victims A, B,
C and D, which required the People to prove, as is relevant here,
that defendant "knowingly act[ed] in a manner likely to be
injurious to the physical, mental or moral welfare" of the
victims, each of whom were less than 17 years of age (Penal Law
§ 260.10 [1]). Victim A and victim B testified that defendant
compelled them to watch pornographic movies, while victim C and
victim D testified that defendant either allowed them to watch or
displayed pornographic movies in a manner that permitted their
viewing. Furthermore, victim A and victim B both testified that
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defendant committed anal sexual conduct against them on multiple
occasions. Crediting the testimony offered by the four victims,
as well as the admissions made by the mother during her testimony
related to owning and watching pornographic movies with
defendant, we are satisfied that the jury's verdict on these four
counts is in accord with the weight of the evidence (see People v
Kuykendall, 43 AD3d 493, 495-496 [2007], lv denied 9 NY3d 1007
[2007]; see generally People v Hughes, 114 AD3d 1021, 1022
[2014], lv denied 23 NY3d 1038 [2014]).
Defendant next contends that he was deprived of a fair
trial as a result of comments made by the prosecutor during the
People's summation. We do not agree. Our analysis is guided by
well-settled parameters that prohibit counsel from serving as a
witness, vouching for the credibility of testifying witnesses,
commenting upon matters that are not in evidence and engaging in
speculation (see People v Ashwal, 39 NY2d 105, 109-110 [1976];
People v Forbes, 111 AD3d 1154, 1158-1160 [2013]). Although
defendant argues that the prosecutor impermissibly shifted the
burden of proof, the record reflects that, at several times
throughout the People's summation, the prosecutor reminded the
jury that the People alone carried the burden of proving
defendant's guilt beyond a reasonable doubt. Similarly, to the
extent that the prosecutor sought to bolster the credibility of
the four victims or mentioned matters not in evidence, County
Court not only sustained many of defendant's objections in this
regard, but also issued proper and timely curative instructions.
In light of the foregoing, and to the extent that defendant's
various other claims of prosecutorial misconduct during the
People's summation were properly preserved for appellate review
by specific objections at trial (see People v Fiorino, 130 AD3d
1376, 1380 [2015], lv denied 26 NY3d 1087 [2015]), we find that
the cumulative effect of the challenged comments was not so
prejudicial as to deny defendant his fundamental right to a fair
trial (see People v Sposito, ___ AD3d ___, ___, 2016 NY Slip Op
04467, *3 [2016]; People v Goldston, 126 AD3d 1175, 1179-1181
[2015], lv denied 25 NY3d 1201 [2015]; People v Widmer, 137 AD2d
929, 931 [1988], lv denied 72 NY2d 868 [1988]; compare People v
Rupnarine, ___ AD3d ___, ___, 2016 NY Slip Op 04257, *1-2 [2016];
People v Gorghan, 13 AD3d 908, 910-911 [2004], lv dismissed 4
NY3d 798 [2005]).
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Nor do we find merit to defendant's multifaceted
ineffective assistance of counsel claim. The record reflects
that defense counsel presented appropriate opening and closing
statements, provided an alternate theory as to the source of
and/or the basis for the victims' allegations of abuse and called
witnesses who testified on defendant's behalf, effectively cross-
examined the People's witnesses and registered appropriate
objections – many of which were sustained and resulted in
curative instructions – and sought and received an inconsistent
statement charge. As such, we are satisfied that defendant
received meaningful representation (see People v Adams, 135 AD3d
1154, 1156-1158 [2016], lv denied 27 NY3d 990 [2016]; People v
Fisher, 126 AD3d 1048, 1052 [2015]). Defendant's remaining
contentions, including those relative to the sentence imposed,
have been examined and found to be lacking in merit.2
Garry, J.P., Lynch, Devine and Mulvey, JJ., concur.
2
To the extent that defendant contends that he was
improperly sentenced as a second violent felony sex offender, the
amended sentence and commitment order reflects that he was
properly sentenced as a second violent felony offender, and it is
apparent from a review of the sentencing minutes that County
Court simply misspoke at the sentencing hearing in using the two
statuses interchangeably.
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ORDERED that the judgment is affirmed.
ENTER:
Robert D. Mayberger
Clerk of the Court