People v. Pierre

Appeal from a judgment of the Supreme Court (Lawliss, J.), rendered November 5, 2014 in Clinton County, convicting defendant following a nonjury trial of the crimes of predatory sexual assault against a child, criminal facilitation in the third degree and endangering the welfare of a child (two counts).

In February 2014, defendant was indicted and charged with predatory sexual assault against a child (two counts), criminal facilitation in the third degree and endangering the welfare of a child (two counts). The charges stemmed from allegations that, between the end of July 2010 and the end of October 2010, defendant sexually abused victim A (born in 1997) and victim B (born in 1999). During that time period, the two victims, who are brothers, resided in defendant’s household.

We affirm. Preliminarily, to the extent that defendant argues that the verdict is not supported by legally sufficient evidence, this issue is unpreserved for our review. That said, “our weight of the evidence review necessarily involves an evaluation of whether all elements of the charged crimes were proven beyond a reasonable doubt at trial” (People v Wilkerson, 140 AD3d 1297 , 1301 [2016] [internal quotation marks, brackets and citations omitted]). Insofar as is relevant here, “[a] person is guilty of predatory sexual assault against a child when, being [18] years old or more, he or she commits the crime of. . . criminal sexual act in the first degree . . . and the victim is less than [13] years old” (Penal Law § 130.96; see People v Fournier, 137 AD3d 1318 , 1319 [2016]). With respect to the underlying crime, “[a] person is guilty of criminal sexual act in the first degree when he or she engages in oral sexual conduct . . . with another person . . . [w]ho is less than [13] years old and the actor is [18] years old or more” (Penal Law § 130.50 [4]). Further, “[a] person [is] guilty of criminal facilitation in the third degree, when believing it [is] probable that he [or she] is rendering aid to a person under [16] years of age who intends to engage in conduct that would constitute a felony, he [or she], being over [18] years of age, engages in conduct which provides such person with means or opportunity for the commission thereof and which in fact aids such person to commit a felony” (Penal Law § 115.01). As set forth in the underlying indictment, the crime that defendant allegedly facilitated was incest in the third degree, which, as relevant here, required proof of “sexual intercourse, oral sexual conduct or anal sexual conduct with a person whom [the actor] knows to be related to him or her . . . [including a] brother or sister of either the whole or the half blood” (Penal Law § 255.25). Finally, “[a] person is guilty of endangering the welfare of a child when . . . [h]e or she knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a child less than [17] years old” (Penal Law § 260.10 [1]).

Here, victim B testified that, at some point between July 2010 and October 2010, defendant (born in 1975) made victim B (then 10 years old) perform oral sex on him in the living

After assessing the foregoing testimony, County Court found defendant not guilty of the first count of the indictment charging him with predatory sexual assault against a child with respect to the incident in the camper — apparently crediting certain testimony offered on behalf of defendant that the camper in question was parked in Vermont at the time that the underlying incident allegedly occurred in Clinton County— and found defendant guilty of the remaining charges. Upon appeal, defendant contends that his conviction is against the weight of the evidence — primarily arguing that the boys’ testimony is unworthy of belief. We disagree.

To be sure, both boys have certain developmental delays and, according to the mother, victim B twice was hospitalized for attempting to hurt — or expressing a desire to injure — a younger sibling in 2010 and 2011. Additionally, both boys previously had been sexually abused by a member of the mother’s family — with the bulk of that abuse directed toward victim A. Although the boys testified before a grand jury with respect to this family member’s abuse in August 2010 and regularly met with the Assistant District Attorney (hereinafter ADA) prosecuting that matter, neither of the boys told the ADA — or the counselors that they then were seeing — that defendant also had abused them. Indeed, even after the ADA “became suspicious that there might be something going on between” victim A and victim B and “tricked [victim B] into disclosing that his brother had had sex with him,” the boys made no mention of

Despite defendant’s protestations, the fact remains that County Court, which had ample opportunity to view the boys’ testimony firsthand and assess their credibility and demeanor, was well aware of their developmental delays, their prior history as victims of sexual abuse, their delay in reporting the abuse perpetrated by defendant and their initial denials of ongoing sexual activity with one another and chose to credit the boys’ testimony as to four of the five counts charged in the indictment. Indeed, County Court’s careful weighing of the boys’ testimony is evidenced by the fact that County Court chose not to credit their testimony as to the incident in the camper but otherwise found such testimony to be worthy of belief. In this regard, County Court was free to credit portions of the victims’ testimony while rejecting other aspects thereof (cf. People v Fancher, 116 AD3d 1084 , 1087 [2014]). Notably, “the appropriate standard for evaluating a weight of the evidence argument on appeal is the same regardless of whether the finder of fact was a judge or a jury because those who see and hear the witnesses can assess their credibility and reliability in a manner that is far superior to that of reviewing judges who must rely on the printed record” (People v Lane, 7 NY3d 888 , 890 [2006] [internal citation omitted]). Applying that standard to the testimony in this case, we find the verdict to be in accord with the weight of the evidence.

The remaining arguments, including those raised in defendant’s pro se brief, do not warrant extended discussion. Although defendant claims that he was denied the effective assistance of counsel due to trial counsel’s failure to challenge the two counts of the indictment charging him with endangering the welfare of a child as time-barred, we disagree. “Given that a conviction of some kind after trial was not unlikely in the face, of the children’s account of events, counsel had a sound basis to give

Peters, P.J., Lahtinen, Rose and Clark, JJ., concur.

Ordered that the judgment is affirmed.