32 Misc. 3d 479
N.Y. Sup. Ct.2011Background
- Defendant was tried before this court and a jury and found guilty of sexual abuse in the second degree, criminal sexual act in the first degree and endangering the welfare of a child.
- Defendant moved to set aside the verdicts on repugnancy, multiplicity, double jeopardy, and sufficiency grounds, and challenged the third‑party culpability evidence ruling.
- Counts were renumbered for submission: count one—course of sexual conduct against a child in the first degree; count two—course of sexual conduct against a child in the second degree; count three—sexual abuse in the second degree; count four—criminal sexual act in the first degree; count five—endangering the welfare of a child.
- Jury was instructed that counts consistent with the evidence could be found even if others were not, and the jury convicted counts three, four, and five while acquitting counts one and two.
- Court held the verdicts were not repugnant or inconsistent, and denied all of defendant’s motions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Are the verdicts repugnant or inconsistent? | People argues elements allow multiple bases for verdicts. | Clarkson/defendant contends combining counts makes verdicts inconsistent. | No repugnancy; multiple elements permit consistent verdicts. |
| Whether third‑party culpability evidence was admissible | People argues no error; evidence not probative of defendant’s guilt. | Defense seeks to introduce father’s past acts as third‑party culpability. | Evidence properly excluded; not probative of third party guilt; not admissible as third‑party culpability. |
| Multiplicity/double jeopardy concerns with overlapping counts | People maintains counts have separate elements. | Counts are multiplicitous or improperly duplicative. | Counts are not multiplicitous; separate elements and time periods justify distinct counts. |
| Sufficiency of evidence for endangering the welfare of a child | Evidence of two acts supports endangering the welfare charge. | Insufficient evidence tied to endangering welfare as charged. | Evidence from the two acts suffices to support endangering welfare. |
| Whether the court rationally explained verdicts differing by age and time elements | Court considered alternate bases for verdicts. | Need rational theory tying different verdicts. | Court found no need to provide a separate rational theory; verdicts sustained by instructions. |
Key Cases Cited
- People v Loughlin, 76 NY2d 804 (1990) (inconsistent repugnant verdicts assessed from jury instructions)
- People v Tucker, 55 NY2d 1 (1981) (elements-based analysis of repugnant verdicts)
- People v Green, 71 NY2d 1006 (1988) (legal consistency not based on evidence view)
- People v Kronberg, 277 AD2d 182 (2000) (verdicts with multiple bases not repugnant if supported by instructions)
- People v Vargus, 79 AD3d 526 (2010) (repugnancy analysis tied to court’s charge, not evidence view)
- People v Soto, 296 AD2d 328 (2002) (multiple counts with extended time periods can be consistent)