People v. Johnson

207 N.Y.S.3d 186

225 A.D.3d 927

The PEOPLE of the State of New York, Respondent,

v.Isaiah M. JOHNSON, Appellant.

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

Calendar Date: January 10, 2024

Decided and Entered: March 7, 2024

John A. Cirando, Syracuse, for appellant.

Weeden A. Wetmore, District Attorney, Elmira (Anne H. Stark of counsel), for respondent.

Before: Clark, J.P., Lynch, Reynolds Fitzgerald, McShan and Powers, JJ.

MEMORANDUM AND ORDER

McShan, J.

Appeal from a judgment of the County Court of Chemung County (Christopher P. Baker, J.), rendered October 29, 2018, upon a verdict convicting defendant of the crimes of criminal sexual act in the first degree (three counts), criminal sexual act in the second degree and course of sexual conduct against a child in the first degree.

In January 2018, defendant was charged by indictment with six counts of criminal sexual act in the first degree (counts 1, 2, 3, 6, 7 and 8), one count of criminal sexual act in the second degree (count 4), and one count of course of sexual conduct against a child in the first degree (count 5) based upon allegations that he engaged in oral sexual conduct with five victims, each less than 13 years old, between June 2014 to November 2017. Defendant moved to, among other things, suppress certain oral and written statements he provided to law enforcement as being involuntary, requested that the People notify him of any criminal activity or prior bad acts they intended to use at trial, and moved to dismiss the indictment for insufficient evidence before the grand jury. The People, among other things, stipulated to a Huntley hearing to establish the voluntariness of defendant’s statements and, as to defendant’s Molineux request, asserted that there were no prior uncharged bad acts they intended to use at trial. County Court denied defendant’s motion to dismiss the indictment and, following a Huntley hearing, the court found defendant’s statements to be voluntary and denied his motion to suppress. Following a jury trial, defendant was convicted of counts 2, 4, 5, 6 and 7 - pertaining to four of the five victims - and acquitted of counts 1, 3 and 8. Defendant was sentenced to four concurrent prison terms of 17 years, to be followed by 15 years of postrelease supervision, on counts 2, 5, 6 and 7, and to a lesser concurrent prison term on count 4. Defendant appeals.

[1] We affirm. Defendant contends that his convictions are not supported by legally sufficient evidence, contending that the testimony of the four victims was imprecise and vague and that the confessions elicited by investigators and introduced at trial were coerced and false. For these same reasons, he contends that the verdict is against the weight of the evidence. "Defendant’s legal sufficiency arguments are unpreserved owing to his failure to identify the specific grounds now raised on appeal in his general motion to dismiss at the conclusion of the People’s case" (People v. Doane, 212 A.D.3d 875, 876, 181 N.Y.S.3d 364 [3d Dept. 2023], lv denied 39 N.Y.3d 1154, 190 N.Y.S.3d 702, 211 N.E.3d 1155 [2023]; see People v. Walker, 191 A.D.3d 1154, 1156, 142 N.Y.S.3d 648 [3d Dept. 2021], lv denied 37 N.Y.3d 961, 147 N.Y.S.3d 518, 170 N.E.3d 392 [2021]). "Nevertheless, [we may assess his] weight of the evidence challenge, which bears no preservation requirement, [and] also requires consideration of the adequacy of the evidence as to each element of the crimes" (People v. Decker, 218 A.D.3d 1026, 1029, 195 N.Y.S.3d 160 [3d Dept. 2023] [internal quotation marks and citations omitted], lv denied 40 N.Y.3d 1012, 199 N.Y.S.3d 14, 222 N.E.3d 530 [2023]).

As charged in counts 2, 6 and 7, "[a] person is guilty of criminal sexual act in the first degree when he or she engages in oral sexual conduct or anal sexual conduct with another person … [w]ho is less than [11] years old" (Penal Law § 130.50[3]). As to count 5, "[a] person is guilty of course of sexual conduct against a child in the first degree when, over a period of time not less than three months in duration[,] … he or she engages in two or more acts of sexual conduct, which includes at least one act of sexual intercourse, oral sexual conduct, anal sexual conduct or aggravated sexual contact, with a child less than [11] years old" (Penal Law § 130.75[1][a]). As to the remaining conduct charged in count 4, "[a] person is guilty of criminal sexual act in the second degree when … being [18] years old or more, he or she engages in oral sexual conduct … with another person less than [15] years old" (Penal Law § 130.45[1]).¹

[2] At trial, each of the victims provided an account of the sexual conduct that defendant perpetrated along with the timing and location of such acts. According to victim A, the first time that defendant performed a sexual act on him occurred at a mutual family member’s house, when defendant touched victim A’s penis in bed, and then performed oral sex on him.² Victim A testified to a second instance that occurred at another family member’s house and was consistent with the first incident. Victim A stated that he had witnessed defendant engaged in the same conduct with victims B and C. According to victim B, their first encounter occurred on or around July 2015, when defendant performed oral sex on victim B while at a park near the victim’s house. Victim B alleged that defendant last touched him in a similar manner, on or around November 2017, while he was staying the night at defendant’s house. Victim B also testified that he had previously seen defendant touch victim C and victim D in the same way while in defendant’s car. According to victim C, defendant performed oral sex on him on three occasions, beginning when victim C was 10 years old and during the summer between his third and fourth grade school years. Victim C explained that the conduct occurred in the summer and that the last incident occurred during baseball season. Finally, victim D testified that defendant touched him on numerous occasions, the first occurrence being on or around the fall of 2016. According to victim D, defendant would take him, victim B, victim E, and another to an abandoned house and would perform oral sex on them. The last time victim D recalled defendant performing oral sex on him was at defendant’s house in November 2017.

The People also introduced the testimony of the investigators who interviewed defendant, along with the recordings of those interviews. During the first interview, defendant confessed to performing oral sex on each of the victims as charged in the indictment. In his accompanying written statement, defendant admitted to performing oral sex on victim A and victim B, in response to a threat from victim A that he would tell his mother about prior sexual contact between him and defendant. Defendant also admitted that he engaged in oral sexual contact with victim C on one occasion at defendant’s home, and with victim D in defendant’s vehicle. During the second interview, defendant confessed to engaging in oral sex acts with victims B, C and D. In his written statement following the second interview, defendant reiterated that he was aware of the rumors that he had engaged in, among other things, oral sexual conduct with victims B, C and D, and admitted that he had in fact engaged in such acts.

Based upon the sum of testimony and documentary evidence, we find that defendant’s convictions are not against the weight of the evidence. Defendant’s contention that the victims’ testimony lacked sufficient detail is unavailing. To this end, defendant’s two confessions and his accompanying written statements, considered alongside the testimony of each of the victims relative to the oral sexual conduct and the respective victims’ age at the time of the offenses, was sufficient to establish the elements of both first- and second-degree criminal sexual act (see Penal Law §§ 130.45[1], 130.50[3]; People v. Atkinson, 185 A.D.3d 1447, 1449, 127 N.Y.S.3d 220 [4th Dept. 2020], lv denied 35 N.Y.3d 1111, 133 N.Y.S.3d 507, 158 N.E.3d 524 [2020]; People v. Lapi, 105 A.D.3d 1084, 1085, 962 N.Y.S.2d 768 [3d Dept. 2013], lv denied 21 N.Y.3d 1043, 972 N.Y.S.2d 541, 995 N.E.2d 857 [2013]; People v. Artis, 90 A.D.3d 1240, 1240, 934 N.Y.S.2d 614 [3d Dept. 2011], lv denied 18 N.Y.3d 955, 944 N.Y.S.2d 483, 967 N.E.2d 708 [2012]; see generally People v. Barcomb, 256 A.D.2d 926, 927, 683 N.Y.S.2d 311 [3d Dept. 1998], lv denied 94 N.Y.2d 798, 700 N.Y.S.2d 431, 722 N.E.2d 511 [1999]). Specific to his conviction for course of sexual conduct against a child in the first degree, the testimony of victim C was sufficiently detailed to establish that defendant engaged in the proscribed sexual acts on two or more occasions over a period greater than three months in duration (see Penal Law § 130.75[1][a]; People v. Carter, 219 A.D.3d 1703, 1704, 197 N.Y.S.3d 783 [4th Dept. 2023], lv denied 40 N.Y.3d 1091, 204 N.Y.S.3d 798, 228 N.E.3d 611 [Jan. 26, 2024]; People v. Saunders, 199 A.D.3d 719, 153 N.Y.S.3d 891 [2d Dept. 2021], lv denied 37 N.Y.3d 1164, 160 N.Y.S.3d 719, 181 N.E.3d 1147 [2022]; see also People v. Werkheiser, 171 A.D.3d 1297, 1301, 98 N.Y.S.3d 345 [3d Dept. 2019], lv denied 33 N.Y.3d 1109, 106 N.Y.S.3d 661, 130 N.E.3d 1271 [2019]). Accordingly, even assuming that the jury could have reached a different determination as to the credibility of the victims’ testimony and the truthfulness of defendant’s confession, thus allowing for a different verdict, "when we view the evidence in a neutral light and defer to the jury’s superior position to determine witness credibility, we are satisfied that the verdict [is] in accord with the weight of the evidence" (People v. Lapi, 105 A.D.3d at 1086, 962 N.Y.S.2d 768; see People v. Mack, 217 A.D.3d 1518, 1519, 190 N.Y.S.3d 546 [4th Dept. 2023], lv denied 40 N.Y.3d 951, 195 N.Y.S.3d 678, 217 N.E.3d 699 [2023]; People v. Warrington, 155 A.D.3d 1450, 1451, 65 N.Y.S.3d 610 [3d Dept. 2017]).

[3–5] Turning to ...