Opinion
814 KA 20-00156
11-12-2021
The PEOPLE of the State of New York, Respondent, v. Shayne M. HILDRETH, Defendant-Appellant.
NORMAN P. EFFMAN, PUBLIC DEFENDER, WARSAW (AMBER R. POULOS OF COUNSEL), FOR DEFENDANT-APPELLANT. DONALD G. O'GEEN, DISTRICT ATTORNEY, WARSAW (VINCENT A. HEMMING OF COUNSEL), FOR RESPONDENT.
NORMAN P. EFFMAN, PUBLIC DEFENDER, WARSAW (AMBER R. POULOS OF COUNSEL), FOR DEFENDANT-APPELLANT.
DONALD G. O'GEEN, DISTRICT ATTORNEY, WARSAW (VINCENT A. HEMMING OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CARNI, NEMOYER, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
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, use of a child in a sexual performance as a sexually motivated felony ( Penal Law §§ 130.91, 263.05 ), unlawful surveillance in the second degree (§ 250.45 [2]), and criminal sexual act in the second degree (§ 130.45 [1]). The first two charges arose from defendant having installed a surveillance camera in the bedroom of the child victim and then using that camera to capture footage of the victim masturbating. The third charge arose from defendant forcing the victim to perform oral sex on him during the summer of 2016.
Defendant contends that there is legally insufficient evidence to support the conviction on the counts of use of a child in a sexual performance as a sexually motivated felony and unlawful surveillance in the second degree because the People failed to present evidence establishing that he captured the footage for the purpose of his own sexual gratification (see Penal Law §§ 130.91 [1] ; 250.45 [2]). We reject that contention. The sexual gratification elements could be inferred from defendant's act of installing a camera in the victim's bedroom (see People v. Newman , 87 A.D.3d 1348, 1349, 929 N.Y.S.2d 827 [4th Dept. 2011], lv denied 18 N.Y.3d 926, 942 N.Y.S.2d 465, 965 N.E.2d 967 [2012] ), as well as from other evidence presented at trial. The victim testified that defendant first touched his penis to her vagina when she was four years old, touched her vagina with his mouth or hands "almost every day" after that, and at times put his penis in her mouth. In addition, pornographic images depicting children other than the victim were found stored on defendant's cell phone. Viewing that evidence in the light most favorable to the People, we conclude that " ‘there is a valid line of reasoning and permissible inferences from which a rational jury could have found’ " beyond a reasonable doubt that defendant captured the surveillance images of the masturbating victim for his own sexual gratification ( People v. Acosta , 80 N.Y.2d 665, 672, 593 N.Y.S.2d 978, 609 N.E.2d 518 [1993] ; see §§ 130.91 [1] ; 250.45 [2]; see generally People v. Danielson , 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ).
Although defendant's remaining challenges to the legal sufficiency of the evidence are unpreserved for our review inasmuch as his motion for a trial order of dismissal was not " ‘specifically directed’ " at those alleged errors ( People v. Gray , 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] ), we nevertheless review the evidence with respect to each of the elements of the crimes in the context of our review of defendant's contention that the verdict is contrary to the weight of the evidence (see People v. Simmons , 184 A.D.3d 326, 327, 125 N.Y.S.3d 504 [4th Dept. 2020] ). Viewing the evidence in light of the elements of the crimes as charged to the jury (see Danielson , 9 N.Y.3d at 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we conclude that the verdict is not against the weight of the evidence (see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).
Defendant further contends that County Court abused its discretion when it allowed the victim to testify about prior uncharged crimes committed by defendant and when it allowed in evidence some of the child pornography found on his cell phone. More particularly, defendant contends that the probative value of that evidence was outweighed by its potential for prejudice (see generally People v. Leonard , 29 N.Y.3d 1, 6-7, 51 N.Y.S.3d 4, 73 N.E.3d 344 [2017] ). We reject that contention. Defendant's past sexual abuse of the victim and his interest in child pornography were highly probative of whether defendant, whose home had previously been broken into, installed the surveillance camera in the victim's bedroom in order to capture images of her for the purpose of his own sexual gratification (see People v. MacLeod , 162 A.D.3d 1751, 1751-1752, 80 N.Y.S.3d 789 [4th Dept. 2018], lv denied 32 N.Y.3d 1005, 86 N.Y.S.3d 764, 111 N.E.3d 1120 [2018] ; see also People v. Ramsaran , 154 A.D.3d 1051, 1054, 62 N.Y.S.3d 555 [3d Dept. 2017], lv denied 30 N.Y.3d 1063, 71 N.Y.S.3d 13, 94 N.E.3d 495 [2017] ). With respect to the criminal sexual act charge, defendant's past abuse of the victim "provided necessary background information on the nature of the relationship and placed the charged conduct in context" ( People v. Dorm , 12 N.Y.3d 16, 19, 874 N.Y.S.2d 866, 903 N.E.2d 263 [2009] ; see Ramsaran , 154 A.D.3d at 1054, 62 N.Y.S.3d 555 ). Thus, the probative value of that evidence " ‘outweighed its tendency to demonstrate defendant's criminal propensity’ " ( MacLeod , 162 A.D.3d at 1752, 80 N.Y.S.3d 789 ).
Defendant failed to preserve for our review his contention that the court erred in failing to provide an immediate limiting instruction with respect to the foregoing Molineux evidence (see CPL 470.05 [2] ; People v. Hall , 182 A.D.3d 1023, 1024, 123 N.Y.S.3d 335 [4th Dept. 2020], lv denied 35 N.Y.3d 1045, 127 N.Y.S.3d 842, 151 N.E.3d 523 [2020] ). Defense counsel had ample opportunity to object to the content and timing of the court's intended instruction, but made no such objection. We decline to exercise our power to review defendant's contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a] ).
Defendant's contention that the court abused its discretion in refusing to suppress certain evidence and statements that he made to the police is also unpreserved for our review because the specific challenges raised on appeal were not raised in defendant's motion (see People v. Samuel , 137 A.D.3d 1691, 1693, 28 N.Y.S.3d 526 [4th Dept. 2016] ). Likewise, defendant did not object, and thus failed to preserve his present challenges, to allegedly improper remarks made during jury voir dire (see People v. Green , 179 A.D.3d 1516, 1516, 118 N.Y.S.3d 853 [4th Dept. 2020], lv denied 35 N.Y.3d 993, 125 N.Y.S.3d 628, 149 N.E.3d 389 [2020], reconsideration denied 35 N.Y.3d 1045, 127 N.Y.S.3d 841, 151 N.E.3d 522 [2020], cert denied ––– U.S. ––––, 141 S.Ct. 2525, 209 L.Ed.2d 554 [2021] ) and the People's summation (see People v. Lane , 106 A.D.3d 1478, 1480, 966 N.Y.S.2d 307 [4th Dept. 2013], lv denied 21 N.Y.3d 1043, 972 N.Y.S.2d 540, 995 N.E.2d 856 [2013] ). We decline to exercise our power to review those challenges as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a] ).
Defendant failed to preserve his challenge to allegedly inaccurate statements contained in the presentence report (see People v. Richardson , 142 A.D.3d 1318, 1319, 38 N.Y.S.3d 325 [4th Dept. 2016], lv denied 28 N.Y.3d 1150, 52 N.Y.S.3d 301, 74 N.E.3d 686 [2017] ; People v. Williams , 89 A.D.3d 1222, 1224, 932 N.Y.S.2d 256 [3d Dept. 2011], lv denied 18 N.Y.3d 887, 939 N.Y.S.2d 757, 963 N.E.2d 134 [2012] ), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a] ). Contrary to defendant's further contention, the sentence is not unduly harsh or severe.
We have reviewed defendant's remaining contentions and conclude that none warrants reversal or modification of the judgment.