THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v GEOFFREY M. HEMINGWAY, Appellant.
Appellate Division of the Supreme Court of New York, Third Department
83 A.D.3d 1300 | 925 N.Y.S.2d 677
April 28, 2011
In May 2008, defendant was charged by indictment with sexual abuse in the first degree (six counts) and endangering the welfare of a child (one count), stemming from allegations that he sexually assaulted the victim (born in 1995), who lived next door to him in a trailer park. After a jury trial, a verdict was rendered convicting defendant of sexual abuse in the first degree (three counts) and endangering the welfare of a child, and acquitting him of the remaining charges. He was subsequently sentenced to aggregate terms of imprisonment totaling 12 years, plus 10 years of postrelease supervision. Defendant now appeals.
Defendant initially claims that his convictions for sexual abuse in the first degree are not supported by the weight of the credible evidence because the victim‘s testimony, in addition to being uncorroborated, is materially inconsistent with prior statements she made regarding these incidents and had been called into question by testimony given by other witnesses who appeared on behalf of defendant at trial. In essence, the victim claimed that on numerous occasions during a 28-month period that began in June 2005, defendant subjected her to illicit sexual contact. The jury‘s verdict contains two convictions based on the victim‘s testimony that defendant, on two separate occasions, used force to subject her to sexual contact (see
Contrary to defendant‘s claim, the victim‘s testimony regarding his contact with her was corroborated by other evidence admitted at trial. In that regard, we refer to testimony given by the victim‘s father and defendant‘s sister-in-law, both of whom described the victim as being visibly upset at a time when she claimed that defendant had sexually assaulted her, and recounted how, upon inquiry, the victim, albeit reluctantly, told them what defendant had allegedly done to her. The father‘s testimony is particularly compelling in terms of establishing the
However, we agree with defendant that even if the jury fully embraced the victim‘s testimony, it did not provide a legally sufficient basis for concluding that defendant used force to have sexual contact with her as alleged in count six of the indictment, and defendant‘s conviction for that charge must be reversed (see
Defendant also argues that the victim‘s trial testimony rendered some of the charges contained in the indictment duplicitous and that his conviction for endangering the welfare of a child must be reversed because it is a lesser included offense of sexual abuse in the first degree. Contrary to defendant‘s contention, endangering the welfare of a child is not a lesser included charge of sexual abuse in the first degree. To obtain a conviction for endangering the welfare of a child, the People must prove that defendant “knowingly act[ed] in a manner likely to be injurious to the physical, mental or moral welfare of a child less than [17] years old” (
Defendant was not, as he claims, denied the effective assistance of counsel. Not only was he acquitted on three of the most serious charges contained in the indictment, but his counsel throughout the trial put forth a defense consistent with defendant‘s innocence and, in particular, provided meaningful repre-
Mercure, J.P., Rose, Lahtinen and McCarthy, JJ., concur.
Ordered that the judgment is modified, as a matter of discretion in the interest of justice, by reversing defendant‘s conviction of sexual abuse in the first degree under count six of the indictment; said count dismissed and the sentence imposed thereon vacated; and, as so modified, affirmed.