People v. DickinsonPeople v. Dickinson
Decided and Entered: April 16, 2020
Calendar Date: February 13, 2020
Before: Garry, P.J., Lynch, Mulvey, Aarons and Reynolds Fitzgerald, JJ.
Rural Law Center of New York, Castleton (Kelly L. Egan of counsel), for appellant.
Jason M. Carusone, District Attorney, Lake George (Rebecca Nealon of counsel), for respondent.
Lynch, J.
Appeal from a judgment of the County Court of Warren County (Hall Jr., J.), rendered October 19, 2016, upon a verdict convicting defendant of the crimes of sexual abuse in the first degree, luring a child and endangering the welfare of a child.
In August 2015, defendant was charged by indictment with criminal sexual act in the first degree, criminal sexual act in the second degree, sexual abuse in the first degree, luring a child and endangering the welfare of a child. The indictment stemmed from defendant engaging in inappropriate sexual conduct with his then-girlfriend‘s 13-year-old daughter (hereinafter the victim) at a hotel in the Town of Queensbury, Warren County. Following a jury trial, defendant was convicted of sexual abuse in the first degree, luring a child and endangering the welfare of a child.1 Defendant moved to set aside the verdict and for recusal, but County Court denied both motions. Thereafter, the court sentenced defendant, as a persistent felony offender, to concurrent prison terms of 15 years to life for his convictions of sexual abuse in the first degree and luring a child, and to a concurrent term of one year for his conviction of endangering the welfare of a child. Defendant appeals.
Initially, defendant contends that his conviction of luring a child is not supported by legally sufficient evidence and is against the weight of the evidence, and his conviction of sexual abuse in the first degree is also against the weight of the evidence. “In conducting a legal sufficiency analysis, this Court views the evidence in the light most favorable to the People and evaluates whether there is any valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial and as a matter of law satisfy the proof and burden requirements for every element of the crime charged” (People v Flower, 173 AD3d 1449, 1450 [2019] [internal quotation marks and citations omitted], lv denied 34 NY3d 931 [2019]; see People v Robinson, 156 AD3d 1123, 1124 [2017], lv denied 30 NY3d 1119 [2018]). In contrast, “[w]hen undertaking a weight of the
As charged in the indictment, to convict defendant of luring a child, the People had to show that he “lure[d] a child into a . . . building . . . for the purpose of committing” the crime of criminal sexual act in the first degree (
At trial, the victim testified that she was born in December 2001. As to the incident, the victim testified that on July 28, 2015, defendant picked her up and they went to the hotel. She stated that she was wearing black and pink shorts and a white tank top. On their way, defendant stopped at a liquor store, where he purchased alcohol, and at a Dollar Store, where the victim purchased Gatorade to mix with the alcohol. According to the victim, defendant handed her two shooters filled with vodka, which she drank. At the hotel, defendant and the victim got a handicapped accessible room because defendant has a disability and was using a wheelchair. Once in the room, defendant made alcoholic drinks, which the victim drank, they ordered pizza and listened to music. After drinking five or six cups, the victim felt sick and vomited. She then fell asleep on the bed while defendant was sitting in his wheelchair across the room. The victim further testified that, at some point, she woke up and observed that defendant was now in bed next to her, without his shirt, and that he began touching her intimate part with his finger and then with his tongue. The victim told defendant to stop and kicked his head, but, since she was still
Thereafter, in the early morning of July 29, 2015, defendant drove the victim to the friend‘s house. The victim explained that she disclosed what had happened to the friend, as well as to her other friends. The victim also went to the police station and disclosed what had occurred. The victim acknowledged that she had gone to counseling and received in-patient treatment several times in the past due to her depression and other harmful behaviors. The victim also admitted that she had previously alleged that her father sexually abused her, but later recanted those allegations. She explained that those allegations of abuse against the father were true, but she recanted them because she did not want to end up in foster care. She also said that she had previously accused another male of touching her, but that she made those allegations when she was three years old and under her father‘s direction.
Various witnesses corroborated parts of the victim‘s testimony. The victim‘s friend testified confirming that the victim messaged him and that, when she came over the next morning, she was crying and told him that defendant had touched her. The testimony from the front desk managers at the hotel confirmed that defendant and a young girl checked into the hotel and that, after they checked out, there was vomit in their room. The owner of the liquor store also testified, confirming defendant‘s visit to the liquor store on the day of the incident, which was captured on the store‘s security camera. Two inmates at a correctional facility, who met defendant in jail, also testified. The inmates stated that defendant admitted to inappropriately touching the victim with his fingers at the hotel. Both inmates were cross-examined regarding their extensive criminal history.
A sexual assault nurse examiner (hereinafter SANE) testified that she conducted a sexual assault examination of the victim on July 30, 2015. The SANE noted that the victim claimed memory loss resulting from alcohol consumption. The victim also consistently described how and where the incident occurred. After the examination, the SANE noted that external trauma to the victim‘s body, as well as a small amount of bleeding, was consistent with the victim‘s description of the incident.
An investigator with the State Police testified that he took the victim‘s statement and asked her to make a controlled call to defendant. During the controlled call, the investigator heard defendant say, in relation to taking the victim to the hotel, that it was “stupid” and that if she reported it, she would go to foster care. The investigator further testified that he conducted a traffic stop of defendant and asked him to come to the barracks, where he then conducted an interview. During the interview, defendant admitted that he took the victim to the hotel because it was very hot outside and that the pair “[h]ung out and watched TV.” Defendant initially denied purchasing alcohol that night, but subsequently admitted to purchasing a bottle of vodka and some vodka shooters after being shown security footage from the store. He denied that the victim drank the alcohol and, when asked what happened during the night, he stated, “I don‘t know.”
For his part, defendant testified that he had a disability from paraplegia and had no movement from the waist down. He stated that he first met the victim when he started dating her mother and has known the victim for about two to three years. As to the incident, defendant testified that he went with the victim to the hotel because she wanted to be in air conditioning. According to defendant, the victim was wearing shorts and a tank top. Before he checked in at the hotel, he went to the liquor store and purchased four shooters and a
Defendant contends that the evidence was legally insufficient to convict him of luring a child — which required him to have an intent to commit the underlying crime of criminal sexual act in the first degree — since he was acquitted of the crime of criminal sexual act in the first degree and there was no other evidence of his intent to commit the underlying crime. We disagree. As defendant acknowledges, in order to find him guilty of luring a child, the jury had to find that he had an intent to commit the crime of criminal sexual act in the first degree, not that he actually committed the underlying crime (
Next, defendant contends that County Court erroneously admitted DNA reports into evidence because the tested items were allegedly not the items that the victim wore at the time of the incident. As defendant concedes, he failed to preserve this contention because he did not object to the admission of the DNA reports on the specific ground he now raises on appeal (
Defendant also acknowledges that he failed to preserve his contention that the prosecutor engaged in misconduct when he misrepresented the results of the DNA analysis by stating that defendant was a “major contributor” to certain DNA profiles tested (
We are also unpersuaded by defendant‘s contention that he was deprived of the effective assistance of counsel because of his counsel‘s alleged failure to make certain pretrial motions or objections at trial. “A claimed violation of the constitutional right to the effective assistance of counsel will not survive judicial scrutiny so long as the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation” (People v Saunders, 176 AD3d 1384, 1391 [2019] [internal quotation marks and citations omitted]; see People v Wilson, 164 AD3d 1012, 1019 [2018]). First, contrary to defendant‘s contention, defense counsel was not ineffective for failing to object to the admission of the DNA reports, the hearsay statements within the reports or to characterizations of the DNA results made by the prosecutor because, as set forth above, such objections would have little or no chance of success (see People v Caban, 5 NY3d 143, 152 [2005]; People v Hackett, 167 AD3d 1090, 1095 [2018]). Moreover, as defense counsel did not have a colorable basis
Lastly, we are unpersuaded that County Court was biased or abused its discretion in sentencing defendant. The record contains no evidence of judicial bias or a basis for recusal (see People v Swartz, 160 AD3d 1296, 1297 [2018]). The court properly sentenced defendant as a persistent felony offender because he was convicted of three prior felonies that resulted in him being incarcerated for more than one year on each conviction (
Garry, P.J., Mulvey, Aarons and Reynolds Fitzgerald, JJ., concur.
ORDERED that the judgment is affirmed.