People v. Gannon

174 A.D.3d 1054

104 N.Y.S.3d 770

The PEOPLE of the State of New York, Respondent,

v.Arthur A. GANNON, Appellant.

109155

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: May 31, 2019

Decided and Entered: July 11, 2019

Danielle Neroni Reilly, Albany, for appellant.

Karen A. Heggen, District Attorney, Ballston Spa (Gordon W. Eddy of counsel), for respondent.

Before: Garry, P.J., Egan Jr., Lynch, Mulvey and Pritzker, JJ.

MEMORANDUM AND ORDER

Lynch, J. Defendant was charged by indictment with various crimes stemming from his inappropriate sexual contact with his two minor stepdaughters (hereinafter the victims) – with which his wife, Heidi Gannon, had assisted – over the course of many years.¹ Following a jury trial, defendant was convicted of three counts of predatory sexual assault, two counts of predatory sexual assault against a child, one count of use of a child in a sexual performance, two counts of sexual abuse in the first degree and two counts of endangering the welfare of a child. Defendant was sentenced to concurrent and consecutive terms, resulting in a maximum prison term of 69 years to life. Defendant appeals.

We affirm. Initially, we reject defendant's assertion that he was deprived of his right to testify before the grand jury. "Where, as here, a defendant has been arraigned in a local criminal court upon a currently undisposed of felony complaint charging an offense which is a subject of the prospective or pending grand jury proceeding, the district attorney must notify the defendant or his or her attorney of the prospective or pending grand jury proceeding and accord the defendant a reasonable time to exercise his or her right to appear as a witness therein. A defendant, in turn, has a right to appear before such grand jury as a witness in his or her own behalf if, prior to the filing of any indictment, he or she serves upon the district attorney of the county a written notice making such request and stating an address to which communications may be sent" ( People v. Wilkerson, 140 A.D.3d 1297, 1299, 33 N.Y.S.3d 523 [2016] [internal quotation marks, ellipses, brackets and citations omitted], lv denied 28 N.Y.3d 938, 40 N.Y.S.3d 366, 63 N.E.3d 86 [2016] ; see CPL 190.50[5][a] ; People v. Evans, 79 N.Y.2d 407, 412, 583 N.Y.S.2d 358, 592 N.E.2d 1362 [1992] ; People v. Harrison, 162 A.D.3d 1207, 1209, 78 N.Y.S.3d 799 [2018], lv denied 32 N.Y.3d 1205, 99 N.Y.S.3d 247, 122 N.E.3d 1159 [2019] ). "The concept of reasonableness is flexible and must be applied to the particular facts of a case as known at the time" ( People v. Sawyer, 96 N.Y.2d 815, 816, 727 N.Y.S.2d 381, 751 N.E.2d 460 [2001] ).

The record reflects that defendant was arraigned on a felony complaint on July 15, 2015. On October 19, 2015, defendant was assigned new counsel. Two days later, at approximately 3:27 p.m., defense counsel notified the People of her representation and advised that defendant intended to testify before the grand jury. Within minutes, the People called defense counsel and stated their intention to present the case to the grand jury as soon as possible. By 10:00 a.m. the next morning, the People had faxed and personally served defense counsel with a CPL 190.50 notice, advising that, in order to exercise his right to testify as a witness before the grand jury, defendant "should appear at the Saratoga County District Attorney's [o]ffice on October 23rd, 2015 at 9:30 [a.m.]" Defense counsel did not respond and failed to appear. Later in the afternoon on October 23, 2015, the People filed a CPL 180.80(2) notice indicating that the grand jury had voted an indictment against defendant. Prior to taking the vote, the People verified with staff at the Saratoga County District Attorney's office that they had not heard from defense counsel. Although defendant takes issue with the People's failure to produce him for the grand jury, he acknowledges that counsel received the notice and fails to explain why she did not appear at the grand jury proceeding or contact the People with respect thereto. Under these circumstances, we find that defendant was provided with reasonable notice and a reasonable opportunity to testify before the grand jury (see People v. Miller, 160 A.D.3d 1040, 1041, 75 N.Y.S.3d 112 [2018], lv denied 32 N.Y.3d 939, 84 N.Y.S.3d 866, 109 N.E.3d 1166 [2018] ; People v. Watkins, 40 A.D.3d 290, 290–291, 837 N.Y.S.2d 7 [2007], lv denied 9 N.Y.3d 870, 840 N.Y.S.2d 900, 872 N.E.2d 1206 [2007] ).

Defendant next contends that count 6 of the indictment – charging use of a child in a sexual performance – was rendered duplicitous because there was testimony regarding a video as well as photographs. "An indictment count is duplicitous when it charges more than one crime that is completed by a discrete act in the same count" ( People v. Madsen, 168 A.D.3d 1134, 1137, 90 N.Y.S.3d 396 [2019] [citation omitted]; see CPL 200.30 ; People v. Hughes, 114 A.D.3d 1021, 1024, 981 N.Y.S.2d 158 [2014], lv denied 23 N.Y.3d 1038, 993 N.Y.S.2d 251, 17 N.E.3d 506 [2014] ). "Even if a count facially charges one criminal act, that count is duplicitous if the evidence makes plain that multiple criminal acts occurred during the relevant time period, rendering it nearly impossible to determine the particular act upon which the jury reached its verdict" ( People v. Dalton, 27 A.D.3d 779, 781, 811 N.Y.S.2d 153 [2006] [citations omitted], lvs denied 7 N.Y.3d 754, 819 N.Y.S.2d 880, 853 N.E.2d 251 [2006], 7 N.Y.3d 811, 822 N.Y.S.2d 486, 855 N.E.2d 802 [2006] ; see People v. Black, 65 A.D.3d 811, 813, 884 N.Y.S.2d 292 [2009], lv denied 13 N.Y.3d 905, 895 N.Y.S.2d 319, 922 N.E.2d 908 [2009] ). Count 6 alleged that, "on or about September 2009, knowing the character and content thereof [defendant] employed, authorized or induced a child less than [17] years of age to engage in a sexual performance." The bill of particulars specified that the crime was against the younger victim. Gannon testified to an incident where defendant recorded himself sexually abusing the younger victim on a video camera. During summation, the People specifically tied the videotape to count 6. Although the victims and Gannon testified that defendant would typically photograph his abuse, in reference to these photographs, the witnesses never described a sexual performance being depicted within the meaning of Penal Law § 263.00(1) and (3). As this testimony did not "make[ ] plain that multiple criminal acts occurred during the relevant time period" ( People v. Dalton, 27 A.D.3d at 781, 811 N.Y.S.2d 153 ), we find that count 6 was not duplicitous (see People v. Weber, 25 A.D.3d 919, 922, 807 N.Y.S.2d 222 [2006], lv denied 6 N.Y.3d 839, 814 N.Y.S.2d 88, 847 N.E.2d 385 [2006] ).

Defendant further contends that County Court improperly denied his motion to suppress items seized from the Saratoga County Public Defender's office or, alternatively, hold a Mapp/Dunaway hearing on that issue. Defendant also contends that the court erred in ruling that certain fruits of that search were not covered by the attorney-client privilege. "The trial court may summarily deny a motion to suppress evidence if the motion papers do not allege a ground constituting a legal basis for the motion or if the sworn allegations of fact do not as a matter of law support the ground alleged" ( People v. Durfey, 170 A.D.3d 1331, 1336, 95 N.Y.S.3d 473 [2019] [internal quotation marks, brackets, ellipsis and citations omitted]; see People v. Briskin, 125 A.D.3d 1113, 1116–1117, 3 N.Y.S.3d 200 [2015], lv denied 25 N.Y.3d 1069, 12 N.Y.S.3d 621, 34 N.E.3d 372 [2015] ). In support of his motion, defendant argued that there are significant factual issues that cannot be adequately resolved without a Mapp/Dunaway hearing, specifically, whether the search warrant was based upon probable cause. We find that defendant's bare allegation of a lack of probable cause, without any factual support, was insufficient to require a hearing (see CPL 710.60[3] ; People v. Durfey, 170 A.D.3d at 1336, 95 N.Y.S.3d 473 ). In any event, upon review of the search warrant application and accompanying sworn statements, we conclude that County Court properly determined that there was probable cause to issue the warrant (see People v. Brown, 167 A.D.3d 1331, 1333, 90 N.Y.S.3d 380 [2018] ; People v. Cherry, 149 A.D.3d 1346, 1347–1348, 52 N.Y.S.3d 567 [2017], lv denied 29 N.Y.3d 1124, 64 N.Y.S.3d 674, 86 N.E.3d 566 [2017] ). With respect to defendant's claim of attorney-client privilege, we find that the crime-fraud exception applied because there was reasonable cause to believe that the items seized pursuant to the search warrant constituted physical evidence of a crime and that their delivery to counsel was for the purpose of concealing evidence, not for seeking legal advice (see People v. Kimes, 37 A.D.3d 1, 27, 831 N.Y.S.2d 1 [2006], lv denied 8 N.Y.3d 881, 832 N.Y.S.2d 494, 864 N.E.2d 624 [2007] ).

We next address defendant's contention that County Court's Molineux ruling, which allowed the People to present evidence of certain prior acts of sexual abuse against the victims, deprived him of a fair trial. "Although evidence of prior uncharged crimes or bad acts may never be presented for the sole purpose of establishing a defendant's criminal propensity or bad character, such evidence may be admissible if it is probative of some other material issue or fact in the case and its probative value outweighs any undue prejudice" ( People v. Knox, 167 A.D.3d 1324, 1325, 90 N.Y.S.3d 389 [2018] [citations omitted], lv denied 33 N.Y.3d 950, 100 N.Y.S.3d 166, 123 N.E.3d 825 [2019] ; see People v. Frumusa, 29 N.Y.3d 364, 369, 79 N.E.3d 495 [2017] ; People v. McCommons, 143 A.D.3d 1150, 1153, 40 N.Y.S.3d 578 [2016], lvs denied 29 N.Y.3d 999, 1001, 57 N.Y.S.3d 720, 722, 80 N.E.3d 413, 415 [2017]). Such evidence may be admitted where it falls within at least one of the "recognized Molineux exceptions – motive, intent, absence of...