ZEITZ, JAMES A., PEOPLE v ( 2017 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
271
KA 09-02205
PRESENT: PERADOTTO, J.P., LINDLEY, DEJOSEPH, NEMOYER, AND TROUTMAN,
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
JAMES A. ZEITZ, DEFENDANT-APPELLANT.
KATHLEEN A. KUGLER, CONFLICT DEFENDER, LOCKPORT (EDWARD P. PERLMAN OF
COUNSEL), FOR DEFENDANT-APPELLANT.
THEODORE A. BRENNER, DEPUTY DISTRICT ATTORNEY, LOCKPORT (THOMAS H.
BRANDT OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Niagara County Court (Sara S.
Sperrazza, J.), rendered March 19, 2004. The judgment convicted
defendant, upon a jury verdict, of course of sexual conduct against a
child in the first degree, rape in the second degree and endangering
the welfare of a child.
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of, inter alia, course of sexual conduct against a
child in the first degree (Penal Law former § 130.75 [a]) and rape in
the second degree (§ 130.30 [1]). By failing to object when the
victim testified, defendant failed to preserve for our review his
contention that County Court abused its discretion in allowing the
victim to offer sworn testimony without inquiring into her capacity
(see People v Peppard, 27 AD3d 1143, 1143, lv denied 7 NY3d 793;
People v Reed, 247 AD2d 900, 900, lv denied 92 NY2d 859; People v
Strong, 172 AD2d 1059, 1059). In any event, that contention lacks
merit. The victim, who was 16 years old at the time of the trial, was
presumed competent to testify, and voir dire was not mandatory (see
CPL 60.20 [2]; People v Martina, 48 AD3d 1271, 1272, lv denied 10 NY3d
961; Peppard, 27 AD3d at 1143), and we conclude that there is no
indication in the record that the court abused its discretion in
permitting the victim to give sworn testimony (see Reed, 247 AD2d at
901; see generally People v Parks, 41 NY2d 36, 45-46).
Defendant further contends that the verdict is against the weight
of the evidence. At the outset, we conclude that “a different verdict
would not have been unreasonable inasmuch as this case rests largely
on the jury’s credibility findings with respect to the testimony of
the victim” (People v Roman, 107 AD3d 1441, 1442, lv denied 21 NY3d
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KA 09-02205
1045; see generally People v Bleakley, 69 NY2d 490, 495).
Nevertheless, viewing the evidence in light of the elements of the
crimes as charged to the jury (see People v Danielson, 9 NY3d 342,
349), and “affording the requisite ‘great deference to the jury given
its opportunity to view the witnesses’ ” (Roman, 107 AD3d at 1442), we
conclude that the verdict is not against the weight of the evidence
(see generally Bleakley, 69 NY2d at 495). Despite some minor
inconsistencies in her trial testimony, we conclude that “nothing in
the record suggests that the victim was ‘so unworthy of belief as to
be incredible as a matter of law’ or otherwise tends to establish
defendant’s innocence of those crimes . . . , and thus it cannot be
said that the jury failed to give the evidence the weight it should be
accorded” (People v Woods, 26 AD3d 818, 819, lv denied 7 NY3d 765; see
People v Olson, 110 AD3d 1373, 1374, lv denied 23 NY3d 1023; Roman,
107 AD3d at 1442).
Contrary to defendant’s contention, any inconsistencies in the
testimony with respect to the dates of the crimes merely presented a
credibility issue for the jury to resolve (see People v Woolson, 122
AD3d 1353, 1355, lv denied 25 NY3d 1078), and “the fact that [the
victim’s] testimony concerning the time frame in which defendant
ceased his sexual contact with her was vague and contradictory at
times does not render her testimony incredible as a matter of law”
(People v Bassett, 55 AD3d 1434, 1436, lv denied 11 NY3d 922).
Contrary to defendant’s further contention, no corroboration of the
victim’s testimony was required inasmuch as the victim was competent
to testify under oath (see CPL 60.20 [2], [3]; People v Izzo, 104 AD3d
964, 966, lv denied 21 NY3d 1005). In any event, “several aspects of
the victim’s testimony were corroborated by other witnesses,”
including the victim’s mother (Roman, 107 AD3d at 1443). The
testimony of the victim’s mother was not “ ‘so inconsistent or
unbelievable as to render it incredible as a matter of law’ ” (People
v Shinebarger, 110 AD3d 1478, 1479, lv denied 24 NY3d 1088).
We reject defendant’s contention that the circumstances under
which the victim disclosed the abuse establishes that her testimony is
not credible. Rather, we conclude that the jury was entitled to
credit the testimony of the People’s expert that victims of abuse
often, as part of child sexual abuse accommodation syndrome, exhibit a
“[d]elayed, conflicted, or unconvincing disclosure” of the abuse (see
Woolson, 122 AD3d at 1355-1356; see generally People v Spicola, 16
NY3d 441, 465, cert denied 565 US 942). Moreover, the jury was
entitled to credit the victim’s testimony that defendant exhibited
violent behavior and threatened to harm her if she disclosed the abuse
(see Olson, 110 AD3d at 1374). We note that the victim’s testimony in
that regard was corroborated by the testimony of the mother, who also
explained that she had not disclosed the sexual abuse that she had
witnessed out of fear for her own safety and that of her children
given defendant’s threats and history of domestic violence (see
generally People v Knapp, 138 AD3d 1157, 1158; Olson, 110 AD3d at
1374).
We have considered defendant’s remaining contention and conclude
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KA 09-02205
that it is without merit.
Entered: March 24, 2017 Frances E. Cafarell
Clerk of the Court