People v. Goff

205 N.Y.S.3d 521

224 A.D.3d 1008

The PEOPLE of the State of New York, Respondent,

v.Robert J. GOFF, Appellant.

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

Calendar Date: December 13, 2023

Decided and Entered: February 8, 2024

Law Office of James E. Tyner, PLLC, Latham (Kathy Manley of counsel), for appellant.

Kristy L. Sprague, District Attorney, Elizabethtown (Kevin P. Mallery of counsel), for respondent.

Before: Garry, P.J., Lynch, Reynolds Fitzgerald, McShan and Mackey, JJ.

MEMORANDUM AND ORDER

Mackey, J.

Appeal from a judgment of the County Court of Essex County (Richard B. Meyer, J.), rendered January 10, 2022, convicting defendant of the crimes of course of sexual conduct against a child in the second degree and endangering the welfare of a child.

In September 2020, defendant was charged in a six-count indictment with two counts of course of sexual conduct against a child in the second degree (see Penal Law § 130.80[1][a]), three counts of endangering the welfare of a child (see Penal Law § 260.10[1]) and sexual abuse in the first degree (see Penal Law § 130.65[3]). These charges stemmed from a statement allegedly made to the victim’s mother by the victim’s younger brother in December 2019, to the effect that defendant had stuck his finger into the victim’s rectum. The State Police investigated and defendant, after waiving his Miranda rights, agreed to speak with police without counsel. Defendant denied the allegations or that he ever touched the victim in a sexual way.

At trial, defendant moved for a directed verdict on all counts. County Court granted the motion on all but one count of course of sexual conduct against a child, between the dates of December 2018 and May 2019, and one count of endangering the welfare of a child for the same time frame. Defendant was convicted of these remaining charges and was sentenced to concurrent prison terms of six years for course of sexual conduct against a child and one year of incarceration for endangering the welfare of a child. Defendant appeals.

[1, 2] Focusing largely on the victim’s credibility, defendant’s first contention is that his convictions are against the weight of the evidence. "In conducting a weight of the evidence review, we view the evidence in a neutral light and determine first whether a different verdict would have been unreasonable and, if not, weigh the relative probative force of conflicting testimony and the relative "strength of conflicting inferences that may be drawn from the testimony to determine if the verdict is supported by the weight of the evidence" (People v. McCoy, 169 A.D.3d 1260, 1261–1262, 95 N.Y.S.3d 441 [3d Dept. 2019] [internal quotation marks and citations omitted], lv denied 33 N.Y.3d 1033, 102 N.Y.S.3d 517, 126 N.E.3d 167 [2019]).

Although a different outcome would not have been unreasonable here, our review of the record confirms that the verdict is not against the weight of the evidence. The victim (born in 2010) testified that during the time he and his family resided at defendant’s home he often slept with defendant, who would stick his finger into the victim’s rectum "almost every night." He recounted that defendant used his index finger to penetrate him and that he sometimes tried to stop defendant by pushing his hand away. The victim’s mother testified that she and her three sons, including the then eight-year-old victim, moved into defendant’s home sometime in December 2018 and moved out in May 2019. Although defendant denied sexual contact with the victim, he admitted that the victim and his family lived with him during that time frame and that the victim (and his brothers) would sometimes sleep in his bed, with their mother’s knowledge and consent, He, testified that this first occurred on March 8, 2019, when he came home from work to find the three boys asleep in his bed after their mother had dismantled their own bed while rearranging a room for herself. He agreed that this happened from time-to-time until the boys and their mother moved out in May. Notwithstanding certain inconsistencies brought out on the victim’s cross-examination, including the time frame for the abuse, the jury apparently credited his testimony and found defendant guilty. Viewing the evidence in a neutral light, and deferring to the jury’s resolution of the credibility issues (see People v. Van Alphen, 167 A.D.3d 1076, 1078, 89 N.Y.S.3d 445 [3d Dept. 2018], lv denied 32 N.Y.3d 1210, 99 N.Y.S.3d 233, 122 N.E.3d 1146 [2019]), we find that defendant’s convictions for course of sexual conduct against a child in the second degree (see Penal Law § 130.80[1][a]) and endangering the welfare of a child (see Penal Law § 260.10[1]) are supported by the weight of the evidence.

[3] We agree with defendant, however, that County Court erred in how it responded to a jury note seeking clarification on the charge of course of sexual conduct against a child in the second degree. Although that argument is unpreserved, we agree with defendant that this Court should address the issue and take corrective action in the interest of justice.

[4–7] Upon a jury’s request for more information, the trial court "must give such requested information or instruction as the court deems proper" (CPL 310.30). "Although the court may exercise some discretion in fashioning a response, the response must be meaningful" (People v. Wilson, 90 A.D.3d 1155, 1156, 934 N.Y.S.2d 265 [3d Dept. 2011] [citations omitted], lv denied 18 N.Y.3d 963, 944 N.Y.S.2d 492, 967 N.E.2d 717 [2012]). "The adequacy of the trial court’s response is gauged by the form of the jury question, the particular issue of which inquiry is made, the supplemental instruction actually given, and the prejudice (if any) to the defendant" (People v. Steinberg, 79 N.Y.2d 673, 684, 584 N.Y.S.2d 770, 595 N.E.2d 845 [1992] [citations omitted]). "Simple reiteration of an original instruction may, under appropriate circumstances, constitute a meaningful response sufficient to satisfy the statutory mandate" (People v. Santi, 3 N.Y.3d 234, 248, 785 N.Y.S.2d 405, 818 N.E.2d 1146 [2004] [citation omitted]). "However, where the court fails to give information requested, upon a vital point, a failure to respond may constitute error. The error is not so much that an instruction is inadequate in some legal respect, but that the jury, misled by or not comprehending the original charge, remains perplexed about the elements of the crime or the application of the law to the facts" (People v. Telesford, 149 A.D.3d 170, 177, 49 N.Y.S.3d 414 [1st Dept. 2017]).

[8] Here, County Court received a note from the jury that stated, "[w]e are confused about the three month time-frame. Just to be clear, if the [d]efendant stuck his finger up the victim’s butt three times between March 5 and May 5 and no time before or after, he would not be guilty? We want to make sure we understand this correctly." The correct answer to that question was quite simple – the defendant would not be guilty in the situation posited by the jury, because an element of the crime of course of sexual conduct against a child in the second degree is that the conduct take place "over a period of time not less than three months in duration" (Penal Law § 130.80[1]). Upon receiving the note, County Court consulted with both parties as to how to proceed. Because they could not agree, however, it simply reread the original instruction about which the jury was expressing confusion. Significantly, the jury had already been provided with a complete written copy of the court’s original instructions for its reference during deliberations. Under these circumstances, County Court’s response to the jury’s inquiry was not meaningful, as it did nothing to clarify the very specific point on which the jury was confused. "[I]n our view, this is one of those rare cases where interest of justice review is warranted. Where the court fails to give information requested upon a vital point no appellate court may disregard the error" (People v. Telesford, 149 A.D.3d at 182–183, 49 N.Y.S.3d 414 [internal quotation marks, brackets and citation omitted]). We find that the court’s inadequate supplemental instruction, under the, circumstances presented here, deprived defendant of a fair trial.

[9] We also agree with defendant that County Court erred in allowing Tara Benincasa to testify concerning child sexual abuse accommodation syndrome (CSAAS), without first determining that she was an expert in that field. Benincasa testified that she is a licensed mental health counselor with a master’s degree and has significant experience in counseling victims, of child sexual abuse. After hearing her qualifications, County Court told the jury that "[t]he determination of whether someone is an expert or not is a factual question. And as you know, the jury decides all factual questions. So it will be up to you to evaluate her credentials and determine whether or not you believe that she is an expert in whatever field she’s going to be testifying about." When defendant’s counsel later objected to Benincasa testifying to opinions because she had not been "established as an expert," the court responded, "[w]ell, the jury has enough information before them, I believe, to make that determination of whether or not she’s an expert."

[10] Although "[t]he court is not required to explicitly declare a witness an expert before permitting [expert] testimony" (People v. Andrade, 172 A.D.3d 1547, 1552, 100 N.Y,S.3d 408 [3d Dept. 2019] [internal quotation marks and citation omitted], lv denied 34 N.Y.3d 928, 109 N.Y.S.3d 713, 133 N.E.3d 415 [2019]), "the trial court is vested with the initial responsibility of evaluating whether an expert possesses the requisite skill, training, education, knowledge or experience from which it can be assumed that the information imparted or the opinion rendered is reliable" (People v. Brown, 128 A.D.3d 1183, 1188, 9 N.Y.S.3d 434 [3d Dept. 2015] [internal quotation marks and...