OWENS, SHEMARIAH L., PEOPLE v ( 2017 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
471
KA 15-00114
PRESENT: WHALEN, P.J., LINDLEY, DEJOSEPH, NEMOYER, AND CURRAN, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
SHEMARIAH L. OWENS, DEFENDANT-APPELLANT.
CHARLES J. GREENBERG, AMHERST, FOR DEFENDANT-APPELLANT.
BARRY L. PORSCH, DISTRICT ATTORNEY, WATERLOO, FOR RESPONDENT.
Appeal from a judgment of the Seneca County Court (Dennis F.
Bender, J.), rendered January 12, 2015. The judgment convicted
defendant, upon a jury verdict, of sexual abuse in the first degree
(two counts) and endangering the welfare of a child (two counts).
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him
following a jury trial of two counts of sexual abuse in the first
degree (Penal Law § 130.65 [3]) and two counts of endangering the
welfare of a child (§ 260.10 [1]). Contrary to defendant’s
contention, County Court did not abuse its discretion in permitting a
child witness to testify even though her name had not been included on
the witness list. Inasmuch as a witness list is required only in
situations involving alibi witnesses and witnesses called to rebut an
alibi (see CPL 250.20), and it is indisputable that the child witness
was neither an alibi witness nor a witness called to rebut an alibi,
we conclude that the court did not abuse its discretion in permitting
the child witness to testify (see People v Stacchini, 108 AD3d 866,
867). To the extent that defendant claims he needed more time to
prepare to cross-examine the child witness, that issue is unpreserved
for our review because defendant never requested an adjournment or
continuance (see People v Jornov, 65 AD3d 363, 370; see also People v
Ressler, 302 AD2d 921, 921; see generally CPL 470.05 [2]).
Defendant further contends that the court erred in permitting
that child witness to testify concerning prior bad acts or uncharged
crimes without first holding a Ventimiglia hearing, and that he was
thereby denied a fair trial. Inasmuch as defendant raised that
contention for the first time in a posttrial CPL 330.30 motion, it is
not preserved for our review (see generally People v Padro, 75 NY2d
820, 821, rearg denied 75 NY2d 1005, rearg dismissed 81 NY2d 989), and
we decline to exercise our power to review it as a matter of
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discretion in the interest of justice (see CPL 470.15 [6] [a]).
Defendant contends that the court erred in permitting the
prosecutor to use leading questions when examining various child
witnesses. With the exception of one question, that contention is not
preserved for our review (see People v Boyd, 50 AD3d 1578, 1578, lv
denied 11 NY3d 785) and, in any event, the contention lacks merit. It
is well settled that “ ‘[l]eading questions may be permitted of a
child victim in a sexual abuse case so the child’s testimony can be
clarified or expedited if the child is apparently unwilling to testify
freely’ ” (id.). Moreover, “ ‘whether to permit the use of leading
questions on direct examination is a matter within the sound
discretion of the trial court and [the court’s ruling on that issue]
will not be disturbed absent a clear demonstration of an abuse of
discretion’ ” (People v Martina, 48 AD3d 1271, 1272, lv denied 10 NY3d
961; see People v Cuttler, 270 AD2d 654, 655, lv denied 95 NY2d 795).
Here, “particularly in view of the intimate and embarrassing nature of
the crime[s],” we conclude that the court did not abuse its discretion
(People v Cordero, 110 AD3d 1468, 1470, lv denied 22 NY3d 1137
[internal quotation marks omitted]; see Martina, 48 AD3d at 1272).
We agree with the People that defendant’s challenges to the legal
sufficiency of the evidence, to the extent that they are preserved,
lack merit. Addressing first defendant’s contention that the evidence
is legally insufficient with respect to the dates of the alleged
crimes, we conclude that defendant failed to preserve that contention
for our review inasmuch as he failed to make a motion to dismiss that
was “specifically directed” at that alleged error (People v Gray, 86
NY2d 10, 19). In any event, that contention lacks merit (see People v
Erle, 83 AD3d 1442, 1444, lv denied 17 NY3d 794).
We have reviewed defendant’s remaining challenges to the legal
sufficiency of the evidence and conclude that they lack merit (see
generally People v Bleakley, 69 NY2d 490, 495). The evidence, viewed
in the light most favorable to the People (see People v Contes, 60
NY2d 620, 621), establishes that defendant subjected both child
victims to sexual contact as that term is defined in Penal Law
§ 130.00 (3) (see People v Hoffert, 125 AD3d 1386, 1387-1388, lv
denied 25 NY3d 990; see also Matter of Daniel R. [Lucille R.], 70 AD3d
839, 841). Moreover, “[i]t is well settled that, ‘[b]ecause the
question . . . whether a person was seeking sexual gratification is
generally a subjective inquiry, it can be inferred from the conduct of
the perpetrator’ ” (Hoffert, 125 AD3d at 1388; see People v Chrisley,
126 AD3d 1495, 1496, lv denied 26 NY3d 1007; People v Anthony D., 259
AD2d 1011, 1011, lv denied 93 NY2d 1001). The inference that
defendant was seeking sexual gratification is “ ‘clearly appropriate’
” where, as here, a nonrelative touches the intimate parts of a child
(People v Watson, 281 AD2d 691, 698, lv denied 96 NY2d 925; see
§ 130.00 [3]; People v Fuller, 50 AD3d 1171, 1175, lv denied 11 NY3d
788). Inasmuch as the evidence is legally sufficient to support the
conviction of sexual abuse in the first degree, “it necessarily also
[is] legally sufficient with respect to the conviction of endangering
the welfare of a child” (People v Scerbo, 74 AD3d 1730, 1732, lv
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KA 15-00114
denied 15 NY3d 757). Viewing the evidence in light of the elements of
the crimes as charged to the jury (see People v Danielson, 9 NY3d 342,
349), we conclude that the verdict is not against the weight of the
evidence (see Bleakley, 69 NY2d at 495).
Finally, we conclude that the sentence is not unduly harsh or
severe.
Entered: April 28, 2017 Frances E. Cafarell
Clerk of the Court