People v. Adams ( 2016 )


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  •                           State of New York
    Supreme Court, Appellate Division
    Third Judicial Department
    Decided and Entered: January 21, 2016                   105907
    ________________________________
    THE PEOPLE OF THE STATE OF
    NEW YORK,
    Respondent,
    v                                     MEMORANDUM AND ORDER
    ELWOOD J. ADAMS JR.,
    Appellant.
    ________________________________
    Calendar Date:   November 23, 2015
    Before:   Peters, P.J., McCarthy, Egan Jr., Devine and Clark, JJ.
    __________
    Matthew C. Hug, Troy, for appellant.
    Derek P. Champagne, District Attorney, Malone (Jennifer M.
    Hollis of counsel), for respondent.
    __________
    Clark, J.
    Appeal from a judgment of the County Court of Franklin
    County (Catena, J.), rendered June 7, 2013, upon a verdict
    convicting defendant of the crime of course of sexual conduct
    against a child in the first degree (two counts).
    In October 2012, defendant, who was born in 1972, was
    charged in an indictment with two counts of course of sexual
    conduct against a child in the first degree stemming from
    allegations that, between September 1, 2005 and October 1, 2007,
    he engaged in two or more acts of sexual conduct with victim A
    (born in 1994) and victim B (born in 1996), who were both less
    than 13 years of age. Following a jury trial, defendant was
    convicted of both counts and his motion to set aside the verdict
    pursuant to CPL 330.30 was denied. Defendant was sentenced to a
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    prison term of 20 years and 20 years of postrelease supervision
    on each count, which sentences were to run concurrently.
    Defendant appeals. Finding no merit to his contentions, we
    affirm.
    Initially, defendant claims that the verdict was against
    the weight of the evidence pointing to, among other things, a
    lack of corroboration of the victims' testimony, which, according
    to him, was also contradictory. While a different verdict would
    not have been unreasonable here, upon our independent review and
    weighing of the conflicting testimony in a neutral light and
    deferring to the jury's determination to credit the victims'
    accounts, we cannot agree that the jury failed to give the
    evidence its deserving weight (see People v Danielson, 9 NY3d
    342, 348 [2007]; People v Olson 110 AD3d 1373, 1374 [2013], lv
    denied 23 NY3d 1023 [2014]; People v Fernandez, 106 AD3d 1281,
    1282-1283 [2013]). Victim A testified that, in September 2005,
    when she was in the sixth grade, defendant told her that he
    wanted to teach her about sex and began by exposing her to
    pornography. He then progressed from groping her to penetrating
    her vagina with a sexual device and his fingers, performing oral
    sex on her, and forcing her to touch his penis with her hand.
    According to victim A, those instances of sexual abuse occurred
    often and in a variety of locations and took place while her
    mother was at work and her siblings were either outside of the
    residence or were otherwise busied. According to victim A, she
    did not tell anyone about the abuse while it was taking place
    because she was afraid and defendant had told her that, if she
    disclosed their sexual interaction, the other children would grow
    up without a father figure and the family would fall apart and,
    moreover, no one would believe her.
    Victim B, victim A's younger sister, testified that she was
    between 9 and 10 years old in September 2005, when defendant
    began sexually abusing her after having found out that her mother
    had told her about sex. According to victim B, defendant stated
    that he wanted to teach her more about sex and show her "how
    things would feel." Defendant's abuse of victim B also
    progressed over time and involved grabbing her, touching her,
    performing oral sex on her, forcing her to perform oral sex on
    him, and penetrating her vagina with a sexual device and his
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    fingers. Like victim A, victim B described being abused by
    defendant "whenever he could" when "nobody else was around."
    According to victim B, she never told anyone about the abuse
    while it was taking place because defendant told her not to and,
    if she told anyone, he would go to jail and the family would
    split up.
    "While there were discrepancies in some of the details,
    they were fully explored and highlighted for the jury, and it is
    'not uncommon for young children to be uncertain and even
    inconsistent in their trial testimony'" (People v Fernandez, 106
    AD3d at 1283-1284, quoting People v Raymo, 19 AD3d 727, 728
    [2005], lv denied 5 NY3d 793 [2005]). Moreover, despite any
    discrepancies, we feel it important to note that the children
    remained resolute that the alleged sexual conduct had occurred, a
    fact that was obviously credited by the jury. Furthermore, the
    expert testimony of a clinical psychologist, Don Lewittes,
    offered by the People, aided the jury's understanding of the
    reasons that children delay disclosure, particularly when sexual
    abuse occurs in family settings.
    Defendant testified, denying that any sexual contact of any
    nature had occurred and offering explanations for why the victims
    would be motivated to fabricate the allegations against him.
    Defendant did, however, admit to telling the victims about
    ejaculation. He also conceded telling the victims that sex was
    the greatest thing they would ever feel and that it would hurt at
    first but, if they used a "[sex] toy," it might make it easier
    for them to have intercourse when they turn 18. He also
    acknowledged that he "may have" told victim A that he would go to
    jail when she accused him of sexually molesting her.
    Additionally, defendant's statement to the police – which was
    properly admitted into evidence at trial – contained similar
    explanations of conduct whereby defendant claimed to have simply
    been offering advice to the victims by, for example, instructing
    them to wash sexual devices before use. Under these
    circumstances, we find no basis to conclude that the jury's
    determination to credit the victims' accounts is against the
    weight of the evidence (see People v Bleakley, 69 NY2d 490, 494-
    495 [1987]; People v Raymo, 19 AD3d at 728).
    -4-                105907
    Nor do we find merit in defendant's contention that he was
    denied the effective assistance of counsel. In this regard, we
    are mindful "to avoid both confusing true ineffectiveness with
    mere losing tactics and according undue significance to
    retrospective analysis" (People v Baldi, 54 NY2d 137, 146 [1981];
    see People v Stultz, 2 NY3d 277, 283 [2004]), and we view the
    record in its totality in order to determine whether the
    defendant was deprived of a fair trial by less than meaningful
    representation (see People v Benevento, 91 NY2d 708, 712 [1998];
    People v Baldi, 54 NY2d at 147).
    Initially, counsel was not ineffective for failing to
    object either to the expert testimony or to the People's related
    comments on summation. It is well settled that an expert witness
    may testify about intra-familial child and adolescent child
    sexual abuse syndrome, child sexual abuse accommodation syndrome
    or other types of conditions associated with victims of sex abuse
    (see People v Williams, 20 NY3d 579, 584 [2013]), so long as he
    or she does not draw any comparison to the facts of the case (see
    People v Spicola, 16 NY3d 441, 465 [2011], cert denied ___ US
    ___, 
    132 S Ct 400
     [2011]; People v Taylor, 75 NY2d 277, 293
    [1990]), as was the case here. Although, as noted by defendant,
    the expert's testimony supported the victims' assertions, it does
    not follow that Lewittes improperly bolstered their testimony or
    drew a comparison between child sexual abuse syndrome and the
    facts of this case, particularly in light of defense counsel's
    cross-examination of the victims and defendant's own testimony
    that tended to suggest, among other things, that the victims'
    actions were inconsistent with having been sexually abused (see
    People v Spicola, 16 NY3d at 465-466). For the same reasons, the
    People's comments on summation referencing the expert's testimony
    "constituted fair comment on the evidence" (People v Jabaut, 111
    AD3d 1140, 1146 [2013], lv denied 22 NY3d 1139 [2014]).
    Next, inasmuch as defendant testified to his continuing
    visitation with his children, we find no error in defense
    counsel's failure to object to the People's further inquiry into
    whether the visitation was supervised (see generally People v
    Wiltshire, 96 AD3d 1227, 1229 [2012], lv denied 22 NY3d 1204
    [2014]). Further, because defendant's written statement did not
    involve prior bad acts or uncharged crimes, we find no error in
    -5-                105907
    counsel's failure to make a Ventimiglia motion to preclude its
    use or his failure to make a motion in limine to redact it.
    Viewing counsel's opening and closing statements as a whole, we
    find that counsel did not impermissibly assume the burden of
    proof. Moreover, the record reveals that, throughout the trial,
    the jury was repeatedly told and reminded by County Court that
    the burden never shifts and that defendant had no obligation to
    offer any proof in defense. Additionally, in his closing
    argument, defense counsel stated to the jury that the court would
    instruct it that, before it can return a guilty verdict, it must
    conclude that defendant's guilt was established beyond a
    reasonable doubt. In this regard, defense counsel pointed out
    the deficiencies in the People's proof, arguing that such
    deficiencies created a "very significant question of doubt."
    Furthermore, counsel's statements were not so egregious that they
    would amount to ineffective assistance of counsel absent any
    other significant errors – of which there were none (compare
    People v Dean, 50 AD3d 1052, 1053 [2008]). Thus, the record
    before us demonstrates that counsel vigorously cross-examined the
    victims and pointed out inconsistencies and, as such, we have no
    reason to doubt that defendant was provided with meaningful
    representation (see People v Henry, 95 NY2d 563, 565-566 [2000]).
    We also find no merit to defendant's argument that his
    sentence, which is well within the statutorily permissible range
    (see Penal Law §§ 70.80 [4] [a] [i]; 130.75 [1] [b]), was harsh
    or excessive (see People v Pimentel, 108 AD3d 861, 861 n 1
    [2013], lv denied 21 NY3d 1076 [2013]). Given the age of the
    victims, the duration of the conduct, the position of trust that
    defendant had held and abused, the nature of the conduct involved
    and his lack of remorse, we find no extraordinary circumstances
    or an abuse of discretion warranting a modification (see People v
    Sorrell, 108 AD3d 787, 794 [2013], lv denied 23 NY3d 1025 [2014];
    People v Pimentel, 108 AD3d at 864).
    Defendant's contention that he was deprived of a fair trial
    because of prosecutorial misconduct was not properly preserved
    for our review. Defendant's remaining contentions, to the extent
    not specifically addressed herein, are without merit.
    -6-                  105907
    Peters, P.J., McCarthy, Egan Jr. and Devine, JJ., concur.
    ORDERED that the judgment is affirmed.
    ENTER:
    Robert D. Mayberger
    Clerk of the Court
    

Document Info

Docket Number: 105907

Judges: Clark

Filed Date: 1/21/2016

Precedential Status: Precedential

Modified Date: 11/1/2024