Opinion
No. 2012–960 N CR.
09-18-2015
The PEOPLE of the State of New York, Respondent, v. Ned BARNES, Appellant.
Opinion
Appeal from a judgment of the District Court of Nassau County, First District (Susan T. Kluewer, J.), rendered March 26, 2012. The judgment convicted defendant, upon a jury verdict, of sexual abuse in the third degree and endangering the welfare of a child.
ORDERED that the judgment of conviction is affirmed.
On April 25, 2010, defendant was charged in an information with sexual abuse in the third degree (Penal Law § 130.55) and endangering the welfare of a child (Penal Law § 260.101 ). It was alleged, among other things, that defendant had grabbed the inner thigh of a 16–year–old female child “on or about the 1st day of November 2009.” In a separate information, charging defendant with forcible touching (Penal Law § 130.52), it was alleged, among other things, that he had touched the leg of the female child “on or about November 1, 2009.”
At the time of his arrest, defendant was placed in an interview room for several hours prior to being questioned by the police. Defendant subsequently gave a statement, which he signed, admitting, among other things, that he had “caress[ed]” the thigh of the female child victim and masturbated in front of her. After a Huntley hearing, the District Court found that defendant's written statement was made voluntarily. At a jury trial, the victim testified that, on October 24, 2009, defendant had “caress[ed]” her inner thigh with “firm pressure” and that he had masturbated in front of her while they were seated in an automobile. The jury found defendant guilty of sexual abuse in the third degree and endangering the welfare of a child, and acquitted him of the forcible touching charge.
On appeal, defendant contends that his written statement should have been suppressed because it was coerced and involuntarily made. He further contends that the information charging him with sexual abuse in the third degree and endangering the welfare of a child should be dismissed since he was deprived of fair notice and protection against double jeopardy because the date on which the offense was alleged to have occurred was too vague. Finally, defendant contends, with respect to his conviction of sexual abuse in the third degree, that the jury failed to give the evidence the weight it should have been accorded in view of the fact that he was acquitted of the charge of forcible touching.
A review of the totality of the circumstances surrounding defendant's questioning by the police, as established at the Huntley hearing and at trial, demonstrates that, after defendant had properly been given his Miranda warnings and had validly waived his rights, he voluntarily issued and signed his statement (see People v. Mateo, 2 NY3d 383, 413–415 2004; People v. Mattis, 108 AD3d 872, 874 2013; People v. DeCampoamor, 91 AD3d 669, 670–671 2012; People v. Brown, 258 A.D.2d 661 1999 ). Although defendant claims that his statement was coerced because he was denied the use of a bathroom while waiting to be interviewed by the police, there was no evidence that defendant had requested to use the bathroom or that such a request had been denied, other than defendant's own testimony (see People v. Whiten, 183 A.D.2d 865 1992 ). The District Court gave little credence to defendant's version of the events surrounding his written statement, and, as the issue on appeal merely raises an issue of credibility, the District Court's resolution thereof is accorded great deference and will not be disturbed on appeal unless it is clearly erroneous (see People v. Mattis, 108 AD3d 872; People v. Davis, 18 AD3d 1016, 1017 2005; People v. Williams, 272 A.D.2d 752 1996 ). We discern no reason to reject the court's credibility determination, as it is supported by the record.
With respect to defendant's argument that the time period alleged in the accusatory instrument was too vague, we find that, after considering the age and intelligence of the victim, the surrounding circumstances, and the nature of the offenses, and given that the period of time is not an essential element of the offenses charged, the approximation of time as alleged therein was satisfactory (see People v. Watt, 81 N.Y.2d 772, 774 1993; People v. Oglesby, 12 AD3d 857, 859 2004; see generally People v. Sedlock, 8 NY3d 535 2007 ).
In its charge to the jury, the court instructed that sexual abuse in the third degree requires a finding of “sexual contact,” which the court defined as “contact” requiring, among other things, that there be a “touching of the sexual or other intimate parts of a person for the purpose of gratifying the sexual desire of either party” (see Penal Law § 130.003 ). With respect to the charge of forcible touching, the court instructed the jury, among other things, that forcible touching involves touching the sexual or other intimate parts of another person, and that such touching includes “squeezing, grabbing ... or pinching” (see Penal Law § 130 .52). As the jury charge with respect to forcible touching included the extra element of “the application of some level of pressure to the victim's sexual or intimate parts” (People v. Guaman, 22 NY3d 678, 684 2014 ), the jury's verdict convicting defendant of sexual abuse in the third degree is not repugnant to the verdict acquitting defendant of the charge of forcible touching. We note that while the victim testified that defendant had “caressed” her leg with “firm pressure,” the jury was free to accept or reject portions of her testimony (see People v. Martinez, 63 AD3d 859 2009 ) and find that defendant had touched the victim's leg without using any force. Indeed, defendant's written statement indicated that he had merely caressed the victim's thigh.
Since the jury verdicts are not repugnant, it would be imprudent for this court on appeal to “speculate concerning the factual determinations that underlay the [forcible touching] verdict because what might appear to be an irrational verdict may actually constitute a jury's permissible exercise of mercy or leniency” (People v. Horne, 97 N.Y.2d 404, 413 2002 ). Consequently, the jury did not fail to give the evidence the weight it should be accorded and, thus, the verdict finding defendant guilty of sexual abuse in the third degree was not against the weight of the evidence (see People v. Danielson, 9 NY3d 342, 348 2007; People v. Rayam, 94 N.Y.2d 557, 560 2000 ).
Accordingly, the judgment is affirmed.
TOLBERT, J.P., GARGUILO and CONNOLLY, JJ., concur.