People v. SlishevskyPeople v. Slishevsky
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of one count each of predatory sexual assault against a child (
The court erred in admitting testimony elicited by the prosecutor establishing that Child Protective Services (CPS) “indicated” a report, following an investigation of the subject victim‘s allegations, which demonstrated that CPS “found credible evidence that there [was] some abuse or maltreatment.” Such evidence “intruded upon the function of the jury to determine whether to credit the victim‘s [allegations]” (Ballerstein, 52 AD3d at 1193; see People v Ciaccio, 47 NY2d 431, 439 [1979]; People v Heil, 70 AD3d 1490, 1492 [2010]). Further, we conclude that the court erred in admitting the testimony of a police detective to the effect that defendant never asked for details of the allegations against him. That testimony, which was elicited by the prosecutor, infringed upon defendant‘s right to remain silent. “Based on constitutional considerations, it has long been and continues to be the law in this State that a defendant‘s silence cannot be used by the People as a part of
Finally, the prosecutor‘s statement during her cross-examination of the victim‘s mother that she was not testifying honestly was manifestly improper (see People v Bailey, 58 NY2d 272, 277 [1983]; People v Russell, 307 AD2d 385, 386 [2003]). As the court recognized, the prosecutor was not entitled to impeach the credibility of the mother‘s testimony on a collateral issue (see People v Pavao, 59 NY2d 282, 288-289 [1983]; People v Jones, 190 AD2d 31, 34 [1993]; see also People v McCright, 107 AD2d 766, 767 [1985]). Although defendant therefore was entitled to “a strong curative instruction” in order to dispel the prejudice occasioned by the remark (People v Layton, 16 AD3d 978, 980 [2005], lv denied 5 NY3d 765 [2005]), the court failed to give one. The clear impropriety of the prosecutor‘s remark, in the absence of an appropriate curative instruction, contributed to the cumulative effect of evidentiary errors and prosecutorial misconduct, which deprived defendant of his right to a fair trial (see generally Ballerstein, 52 AD3d at 1192-1193).
We further agree with defendant that several counts of the indictment must be dismissed. Count three of the indictment charges the same crime as count two, and thus count three should be dismissed as multiplicitous (see People v Pruchnicki, 74 AD3d 1820, 1822 [2010], lv denied 15 NY3d 855 [2010]; People v Moffitt, 20 AD3d 687, 690-691 [2005], lv denied 5 NY3d 854 [2005]). Those two counts charged defendant with course of sexual conduct against a child in the second degree based upon acts occurring between September 2001 and June 2003. The People contend that the two counts are not multiplicitous inasmuch as the victim spent summers living away from defendant, creating an interruption of approximately two months that was sufficient to end one course of sexual conduct and begin another. We reject that contention. A course of sexual conduct conviction may rest on as few as two incidents of sexual conduct “over a period of time not less than three months in duration” (
Under the same line of reasoning, count five of the indictment must be dismissed as multiplicitous of count six because both counts were based upon one course of conduct occurring between September 2006 and June 2008 (see Pruchnicki, 74 AD3d at 1822; Moffitt, 20 AD3d at 690-691). Furthermore, we note that count five, which charges course of sexual conduct against a child in the first degree, is a lesser included offense of count six, which charges predatory sexual assault against a child. Count five thus would be subject to dismissal on that ground as well (see People v Beauharnois, 64 AD3d 996, 999-1001 [2009], lv denied 13 NY3d 834 [2009]), although the issue is unpreserved for our review (see
Defendant preserved for our review his challenge to the legal sufficiency of the evidence with respect to counts 7 through 11 of the indictment, which charge three counts of criminal sexual act in the second degree and two counts of sexual abuse in the second degree. As the People correctly concede, the evidence adduced at trial is legally insufficient to support the conviction with respect to the above counts, which therefore must be dismissed (see generally People v Oberlander, 60 AD3d 1288, 1289-1291 [2009]). Finally, defendant‘s constitutional challenges are raised for the first time on appeal and are therefore not preserved for our review (see People v Miles, 294 AD2d 930, 930-931 [2002], lv denied 98 NY2d 678 [2002]; see generally People v Baumann & Sons Buses, Inc., 6 NY3d 404, 408 [2006], rearg denied 7 NY3d 742 [2006]; People v Peck, 31 AD3d 1216, 1216 [2006], lv denied 9 NY3d 992 [2007]). In any event, those challenges have no merit.
In light of our determination, we do not address defendant‘s remaining contentions. Present—Centra, J.P., Peradotto, Carni, Lindley and Sconiers, JJ.