People v. Chirse , 44 N.Y.S.3d 603 ( 2017 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: January 5, 2017 107583
________________________________
THE PEOPLE OF THE STATE OF
NEW YORK,
Respondent,
v MEMORANDUM AND ORDER
DEVANTE CHIRSE,
Appellant.
________________________________
Calendar Date: November 15, 2016
Before: Garry, J.P., Egan Jr., Devine, Clark and Mulvey, JJ.
__________
Theodore J. Stein, Woodstock, for appellant.
P. David Soares, District Attorney, Albany (Michael C.
Wetmore of counsel), for respondent.
__________
Devine, J.
Appeal from a judgment of the County Court of Albany County
(Lynch, J.), rendered April 24, 2015, upon a verdict convicting
defendant of the crimes of criminal sexual act in the first
degree (three counts) and criminal sexual act in the second
degree (three counts).
Defendant, then 21 years of age, allegedly forced the
victim, then 13 years of age, to fellate him on three occasions
in February 2014. The victim disclosed the abuse to her mother
shortly after the third incident, at which point the authorities
were summoned. The ensuing investigation ended in defendant
being indicted on three counts of criminal sexual act in the
first degree and three counts of criminal sexual act in the
-2- 107583
second degree. A jury found him guilty as charged. County Court
imposed concurrent sentences on each count that resulted in an
aggregate prison sentence of 10 years to be followed by
postrelease supervision of 20 years. Defendant now appeals.
Defendant's initial contention that the verdict was not
based upon legally sufficient "evidence is unpreserved for our
review inasmuch as he presented evidence after his unsuccessful
motion to dismiss and failed to renew that motion at the close of
all proof" (People v Peterkin, 135 AD3d 1192, 1192 [2016];
see People v Lane, 7 NY3d 888, 889 [2006]). Nevertheless, "since
defendant also argues that the verdict was against the weight of
the evidence, which does not require preservation, we will
consider the evidence adduced as to each of the elements of the
challenged crimes in the context of that review" (People v Race,
78 AD3d 1217, 1219 [2010] [internal quotation marks and citation
omitted], lv denied 16 NY3d 835 [2011]; see People v Simmons, 135
AD3d 1193, 1195 [2016], lv denied 27 NY3d 1006 [2016]). Turning
to that analysis, acquittal was a reasonable possibility due to
the conflicting accounts provided by defendant and the victim and
the lack of physical evidence to corroborate the victim's claims,
and we are therefore obliged to "weigh conflicting testimony,
review any rational inferences that may be drawn from the
evidence and evaluate the strength of such conclusions[,
deciding] whether the jury was justified in finding . . .
defendant guilty beyond a reasonable doubt" (People v Danielson,
9 NY3d 342, 348 [2007]; see People v Kancharla, 23 NY3d 294, 303
[2014]; People v Simmons, 135 AD3d at 1195).
The victim testified in detail as to three incidents in
February 2014 wherein defendant came into her bedroom and forced
her to perform oral sex on him. She told her younger sister
about the first incident soon after it occurred but ordered her
sister not to tell their mother, a point corroborated by the
sister. The victim further testified that she drafted a letter
to her mother disclosing the abuse that she placed in her jewelry
box and that, the day after the third incident, she text messaged
her mother with instructions to read the letter. The victim's
mother testified to contacting the police upon reading the
letter. No physical evidence existed to support the victim's
claims, but the People submitted proof that this was to be
-3- 107583
expected due to a variety of factors, including the delay in
disclosing the abuse. County Court also appropriately allowed
the jury to hear testimony from a physician who related
statements made by the victim that furthered his performance of a
sexual abuse examination (see People v Spicola, 16 NY3d 441, 451
[2011], cert denied US , 132 S. Ct. 400 [2011]), as well as
that of a psychologist who explained in general why a child might
fail to promptly disclose sexual abuse (see People v Nicholson,
26 NY3d 813, 828 [2016]; see also People v Duchowney, 166 AD2d
769, 771 [1990]). Defendant endeavored to call the victim's
account into question, denied that he had abused her and offered
far-from-conclusive proof that he was elsewhere when some of the
incidents allegedly occurred. The jury, however, credited the
account given by the victim. Deference is owed to that
credibility determination and, after weighing the conflicting
proof ourselves, we cannot say that the verdict was against the
weight of the evidence (see People v Knapp, 138 AD3d 1157, 1158
[2016]; People v Adams, 135 AD3d 1154, 1156 [2016], lv denied 27
NY3d 990 [2016]).
Defendant's remaining claims may be briefly disposed of.
He argues that he was improperly excluded from a conference to
formulate the charge to the jury. Even if he had not waived his
right to attend all sidebar conferences, his presence would still
have been superfluous at that conference, which "involved only
questions of law or procedure" (People v Velasco, 77 NY2d 469,
472 [1991]; see People v Horan, 290 AD2d 880, 884 [2002], lv
denied 98 NY2d 638 [2002]). Defendant was sentenced to serve
several terms of postrelease supervision that merged as a matter
of law and, contrary to his contention, no confusion upon that
point exists in the record (see Penal Law § 70.45 [5] [c]).
Remittal is not required to correct an error on the uniform
sentence and commitment form regarding a shorter term of
postrelease supervision that was subsumed by a longer one (see
People v Dukes, 14 AD3d 732, 733 [2005], lv denied 4 NY3d 885
[2005]).
Garry, J.P., Egan Jr., Clark and Mulvey, JJ., concur.
-4- 107583
ORDERED that the judgment is affirmed.
ENTER:
Robert D. Mayberger
Clerk of the Court