THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v EULOGIO CRUZ, Also Known as LEWIS CRUZ, Appellant.
Appellate Division of the Supreme Court of New York, Third Department
March 1, 2007
38 A.D.3d 893 | 837 N.Y.S.2d 767
■ THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v EULOGIO CRUZ, Also Known as LEWIS CRUZ, Appellant. [837 NYS2d 767]—
Carpinello, J. Appeal from a judgment of the County Court of Rensselaer County (Czajka, J.), rendered May 21, 2004, upon a verdict convicting defendant of the crimes of sodomy in the first degree (four counts), sexual abuse in the first degree (12 counts) and endangering the welfare of a child (two counts).
Following a jury trial, defendant was convicted of four counts of sodomy in the first degree, 12 counts of sexual abuse in the first degree and two counts of endangering the welfare of a child stemming from his inappropriate sexual contact with the 10-year-old daughter of his girlfriend.1 He was thereafter sentenced to maximum consecutive sentences which resulted in an aggregate sentence of 100 years in prison. He now appeals.
Defendant argues, and the People concede, that eight of the sexual abuse counts are multiplicitous (seе People v Moffitt, 20 AD3d 687, 690-691 [2005], lv denied 5 NY3d 854 [2005]). Although this precise claim was not properly preserved by an appropriate motion to dismiss (see
Testimony at trial established that defendant and the victim‘s mother knew each other for 10 years beforе becoming romantically involved in the fall of 2001 and moving in together. In November 2001, they, along with the victim and her younger sister, moved into a new house in а new neighborhood. According to the victim, on four particular occasions between December 2, 2001 and January 28, 2002 at this new house, defendant kissed her on the mouth, placed his hands on her breasts and placed his finger and tongue into her vagina. According to the victim, she was ablе to recall these particular dates because she wrote them down on a piece of paper following each incident.
Moreover, according to the victim, she told a friend about the abuse sometime in December 2001 when that friend visited her for the first time at thе new house, and she finally told her father about it on February 5, 2002. The next day, the victim agreed to place a controlled telephone call to defendant at his place of employment. This call was monitored and recorded by a senior State Police investigator, admitted into evidence over defense objections and played to the jury. During the conversation, while defendant indeed denied the viсtim‘s specific accusations of inappropriate sexual contact, he nevertheless instructed her “[not to] tell anybody,” forеwarned her three times that things would go “crazy” if she told, informed her that she would get in trouble for telling, asked her “[not to] say anything, . . . [b]ecause it could be very danger[ous] for everybody” and further asked her to “[t]hink about your mother, think about yourself, think about your father, think of everybody.”
Viewing this evidence in а light most favorable to the People, we find that there is a valid line of reasoning and permissible inferences which could lead the jury to сonclude that the elements of each of the remaining charged crimes were proven beyond a reasonable doubt (see id.; People v Contes, 60 NY2d 620, 621 [1983]). Mоreover, despite defendant‘s testimony denying any inappropriate sexual contact with the victim and denying that he even had the opportunity to do so given his work schedule and the layout of their small ranch house, the jury‘s verdict was not against the weight of the evidence (see
Next, we find no error in permitting the People to introduce the taped telephone call between defendant and the victim into evidence as that conversation contained statements by defendant that were “sufficiently inculpatory to warrant admission [into evidence]” (People v Swart, 273 AD2d 503, 504 [2000], lv denied 95 NY2d 908 [2000]) as admissions on his part (see People v Johnson, 250 AD2d 922, 928 [1998], affd 93 NY2d 254 [1999]; People v Burke, 96 AD2d 971, 971-972 [1983], affd 62 NY2d 860 [1984]; see also People v Bretagna, 298 NY 323, 326 [1949], cеrt denied 336 US 919 [1949]; Prince, Richardson on Evidence §§ 8-201, 8-204 [Farrell 11th ed]). Moreover, since the victim‘s testimony constituted direct evidence of defendant‘s guilt (sеe People v Butler, 132 AD2d 771, 772 [1987], lv denied 70 NY2d 873 [1987]; People v Burke, supra at 972), County Court correctly denied defendant‘s request for a circumstantial evidence charge. Thus, his claim that a new trial is warranted under People v Sanchez (92 AD2d 595 [1983], affd 61 NY2d 1022 [1984]) is unpersuasive.
Wе are persuaded, however, that defendant‘s sentence is harsh and excessive under the particular facts of this case, warranting rеduction by this Court in the interest of justice (see
We have reviewed defendant‘s remaining contentions and find them without merit.
Ordered that the judgment is modified, as a matter of discrеtion in