Opinion
2012-04-27
The PEOPLE of the State of New York, Respondent, v. Stephen O. WILLIAMS, Jr., Defendant–Appellant.
Donald R. Gerace, Utica, for Defendant–Appellant. Scott D. McNamara, District Attorney, Utica (Steven G. Cox of Counsel), for Respondent.
Donald R. Gerace, Utica, for Defendant–Appellant. Scott D. McNamara, District Attorney, Utica (Steven G. Cox of Counsel), for Respondent.
PRESENT: CENTRA, J.P., PERADOTTO, SCONIERS, AND MARTOCHE, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon a jury verdict of sexual abuse in the first degree (Penal Law § 130.65[2] ) and sexual abuse in the third degree (§ 130.55). Defendant failed to preserve for our review his challenge to the legal sufficiency of the evidence inasmuch as he made only a general motion for a trial order of dismissal ( see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919), and he failed to renew that motion after presenting evidence ( see People v. Hines, 97 N.Y.2d 56, 61, 736 N.Y.S.2d 643, 762 N.E.2d 329, rearg.denied 97 N.Y.2d 678, 738 N.Y.S.2d 292, 764 N.E.2d 396). In any event, that contention lacks merit ( see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). The jury reasonably could have found that defendant engaged in “ ‘[s]exual contact’ ” when he touched the victim's buttocks (§ 130.00[3]; see Matter of Kenny O., 276 A.D.2d 271, 272, 714 N.Y.S.2d 206, lv. denied 96 N.Y.2d 701, 722 N.Y.S.2d 793, 745 N.E.2d 1015; People v. Felton, 145 A.D.2d 969, 971, 536 N.Y.S.2d 340, lv. denied 73 N.Y.2d 1014, 541 N.Y.S.2d 769, 539 N.E.2d 597), and that such touching was “for the purpose of gratifying [defendant's] sexual desire” (§ 130.00[3]; see People v. Stewart, 57 A.D.3d 1312, 1315, 870 N.Y.S.2d 157, lv. denied 12 N.Y.3d 788, 879 N.Y.S.2d 65, 906 N.E.2d 1099, cert. denied ––– U.S. ––––, 130 S.Ct. 1047, 175 L.Ed.2d 890). With respect to the count charging defendant with sexual abuse in the first degree, the testimony of the victim that she was asleep when defendant began touching her was legally sufficient to establish the element of physical helplessness ( see People v. Smith, 16 A.D.3d 1033, 1034, 790 N.Y.S.2d 805, affd. 6 N.Y.3d 827, 817 N.Y.S.2d 575, 850 N.E.2d 622, cert. denied 548 U.S. 905, 126 S.Ct. 2971, 165 L.Ed.2d 953; see generally § 130.00[7] ), even in the absence of evidence that sleep was induced by drug or alcohol use ( see People v. Irving, 151 A.D.2d 605, 605–606, 542 N.Y.S.2d 693; see generally People v. Manning, 81 A.D.3d 1181, 1181–1182, 917 N.Y.S.2d 721). With respect to the count charging defendant with sexual abuse in the third degree, the People presented legally sufficient evidence that the victim was 16 years old at the time of the incident and thus incapable of consenting ( see § 130.05[2][b]; [3][a] ).
We reject defendant's further contention that County Court erred in failing to give the jury a missing witness charge with respect to the victim's mother ( see generally People v. Kitching, 78 N.Y.2d 532, 536–537, 577 N.Y.S.2d 231, 583 N.E.2d 944; People v. Gonzalez, 68 N.Y.2d 424, 427–428, 509 N.Y.S.2d 796, 502 N.E.2d 583). Defendant's request for that charge was untimely because it was not made until both parties had rested, rather than at the close of the People's proof, when defendant became “aware that the witness would not testify” ( People v. Hayes, 261 A.D.2d 872, 873, 690 N.Y.S.2d 358, lv. denied 93 N.Y.2d 1019, 1021, 697 N.Y.S.2d 578, 580, 719 N.E.2d 939, 941). In any event, we conclude that the People demonstrated that the victim's mother was unavailable ( see generally Kitching, 78 N.Y.2d at 536–537, 577 N.Y.S.2d 231, 583 N.E.2d 944), inasmuch as her “whereabouts [were] unknown and that diligent efforts to locate [her had] been unsuccessful” ( Gonzalez, 68 N.Y.2d at 428, 509 N.Y.S.2d 796, 502 N.E.2d 583).
Contrary to defendant's contention, he was not deprived of his constitutional right to present a defense when the court barred one of his potential witnesses from testifying concerning certain statements made by the victim's mother. In those statements, the victim's mother allegedly threatened to accuse defendant of the crimes at issue as part of an extortion scheme. The “right to present a defense does not give criminal defendants carte blanche to circumvent the rules of evidence” ( People v. Hayes, 17 N.Y.3d 46, 53, 926 N.Y.S.2d 382, 950 N.E.2d 118, cert. denied ––– U.S. ––––, 132 S.Ct. 844, 181 L.Ed.2d 553 [internal quotation marks omitted] ). The courts therefore have the discretion to exclude evidence sought to be introduced by a defendant where such evidence is irrelevant or constitutes hearsay, and its probative value is “outweighed by the dangers of speculation, confusion, and prejudice” ( id. at 54, 926 N.Y.S.2d 382, 950 N.E.2d 118; see People v. Procanick, 68 A.D.3d 1756, 1756, 890 N.Y.S.2d 868, lv. denied 14 N.Y.3d 844, 901 N.Y.S.2d 150, 927 N.E.2d 571), or where such evidence is “too slight, remote or conjectural to have any legitimate influence in determining the fact in issue” ( People v. Martinez, 177 A.D.2d 600, 601, 575 N.Y.S.2d 938, lv. denied 79 N.Y.2d 829, 580 N.Y.S.2d 210, 588 N.E.2d 108). Finally, the sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.