People v. HicksPeople v. Hicks
On December 19, 2005, defendant was charged in a superseding indictment1 with multiple counts of sexual abuse in the first degree and endangering the welfare of a child, all stemming from his alleged sexual contacts with the then seven-year-old victim between December 2004 to January 2005. Following a jury trial, defendant was convicted of three counts of sexual abuse in the first degree and three counts of endangering the
Defendant contends that certain of the witnesses at trial offered testimony that was unreliable or inappropriate and, therefore, the jury‘s verdict was against the weight of the evidence. Inasmuch as a different verdict would arguably not have been unreasonable, we “weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony” (People v Barringer, 54 AD3d 442, 443 [2008] [internal quotation marks and citations omitted]) and then determine “whether the jury was justified in finding the defendant guilty beyond a reasonable doubt” (People v Gayle, 53 AD3d 857, 858 [2008] [internal quotation marks and citations omitted]).
Here, the victim testified that she knew defendant as a family friend who sometimes gave her gifts. She stated that he took her for several rides in his car, including visits to his home on two occasions. During one visit to his home, defendant took a picture of her lying on his bed and gave her underwear as a present. She also testified that defendant took her to different cemeteries where he would let her drive while sitting on his lap. While doing so, defendant touched her vagina with his finger on at least three separate occasions. After the victim informed her mother of these occurrences, the child was taken to see Judith Sessenwein, a certified nurse practitioner trained to identify the signs of sexual abuse. Sessenwein testified that, among other things, her examination of the victim in January 2005 revealed increased vascularity and signs of vaginal scarring in a location that was suggestive of “possible sexual abuse.” Although defendant, who testified at trial, denied having sexual contact with the victim or allowing her to sit on his lap, he confirmed driving the victim to his home and various cemeteries, letting her “drive” his car, giving her underwear and taking a picture of her on a bed in his home.
Viewing this and the other evidence produced “in a neutral light and according appropriate deference to the jury‘s assessment of witness credibility and demeanor” (People v Barringer, 54 AD3d at 443), it is our view that the verdict was not against the weight of the evidence. While defendant maintains that certain inconsistencies in the recollections of the victim and her mother rendered their testimonies unworthy of belief, these differences were fully developed or explained at trial, thus afford
We are also unpersuaded that the admission of Sessenwein‘s testimony constituted an improper usurpation of the jury‘s fact-finding function. Contrary to defendant‘s claim, Sessenwein did not “attempt to prove that the charged crimes occurred” (People v Higgins, 12 AD3d 775, 778 [2004], lv denied 4 NY3d 764 [2005]). Rather, based on her training, experience and examination of the victim, Sessenwein opined that what she observed was consistent with or highly suggestive of sexual abuse. Such opinion testimony is not prohibited and County Court did not abuse its discretion in allowing it to be heard by the jury (see People v Rogers, 8 AD3d 888, 892 [2004]; People v Morehouse, 5 AD3d 925, 928 [2004], lv denied 3 NY3d 644 [2004]; People v Munroe, 307 AD2d 588, 591 [2003], lv denied 100 NY2d 644 [2003]).
Next, defendant challenges County Court‘s denial of his motion to dismiss on the basis of a
Here, since only two of the counts in the superseding indictment appear to relate back to crimes alleged in the original indictment of June 8, 2005 (dismissed on October 20, 2005), County Court concluded that defendant only stated an arguable speedy trial challenge with respect to those two charges (counts four and eight). Although defendant disputes that conclusion, a resolution of that issue is not necessary inasmuch as we find that all the counts of the superseding indictment were within the time limitations set forth in
Finally, we are unpersuaded by defendant‘s contention that his sentences were harsh and excessive. Defendant has not demonstrated an abuse of County Court‘s discretion or the existence of extraordinary circumstances warranting modification (see People v Young, 13 AD3d 716, 718 [2004]).
The remaining arguments advanced by defendant, including his claim that County Court erred in denying his motion on the eve of trial to have the victim submit to a second physical examination by his medical expert (cf. Matter of Erick R., 166 AD2d 161, 162 [1990], lv denied 77 NY2d 802 [1991]), have been examined and found to be without merit.
Mercure, Spain and Malone Jr., JJ., concur.
Ordered that the judgment is affirmed.