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PARAMORE v. FILION

August 11, 2003

ROBERT PARAMORE, PETITIONER,
v.
GARY FILION, SUPERINTENDENT OF COXSACKIE CORRECTIONAL FACILITY, RESPONDENT



The opinion of the court was delivered by: VICTOR Marrero, District Judge

DECISION AND ORDER

Petitioner, Robert Paramore ("Paramore"), incarcerated in a New York State correctional facility following his conviction of offenses involving sexual misconduct with a child, filed a petition (the "Petition") for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent Gary Filion (the "State"), Superintendent of the New York State Coxsackie Correctional Facility, opposes the Petition. For the reasons discussed below, the Petition is DENIED. [ Page 2]

I. BACKGROUND*fn1

Paramore was convicted on August 9, 1999 by a trial court in New York State Supreme Court, Bronx County (the "Trial Court"), sitting without a jury. A summary of the facts surrounding his conviction follows.

When Quanisha Player ("Quanisha") was five years old she was sexually abused by Paramore. At that time, Quanisha lived with her mother, Georgette Player ("Georgette"), her two younger brothers, and her grandfather. Georgette and Paramore, who began dating on October 17, 1997, were sexually involved until January, 20, 1998. Georgette and Paramore began spending the night at each other's homes within two weeks of the start of the relation ship, and Georgette's children would occasionally stay over at Paramore's house.

Georgette voluntarily placed Quanisha and her brothers in the custody of her sister, Miami Player ("Miami"), on April 10, 1 998, after Miami noticed physical bruises on Quanisha, which were admittedly caused by Georgette. [ Page 3]

Allegations of sexual misconduct against Quanisha by Paramore came to light in June 1998 when Quanisha told Miami about the abuse. Quanisha had attempted to tell Georgette about the abuse on one previous occasion, but apparently her attempt was ignored.

On June 8, 1998, Quanisha was interviewed twice at the emergency room of Jacobi Hospital by Margarita Colon ("Colon"), a social worker at the hospital. During these interviews, Quanisha told Colon about specific incidents of sexual abuse committed by Paramore. A few days later, Dr. Hoffman-Rosenfeld, a qualified expert in the field of child sexual abuse, performed a through physical exam of Quanisha but found no signs of sexual abuse in the genital or anal area. However, Dr. Hoffman-Rosenfeld explained at Paramore's trial that it is possible for a child to have been sexually abused without any physical signs remaining after two months.

At the close of the prosecution's case-in-chief, Paramore moved to dismiss the charges against him on the ground that the prosecution had adduced insufficient evidence to prove each and every element of the offense beyond a reasonable doubt. Paramore's motion was denied on July 2, 1999. The Trial Court convicted Paramore of one count of sexual conduct against a child in the first degree [ Page 4]

and one count of endangering the welfare of a child. On September 27, 1999, Paramore was sentenced to a term of imprisonment of from ten to twenty years for sexual conduct against a child in the first degree, to be served concurrently with a term of imprisonment of one year for endangering the welfare of a child.

In his appeal to the New York Supreme Court, Appellate Division, First Department (the "Appellate Division"), Paramore argued that the prosecution's evidence was insufficient, as a matter of law, to prove that he was guilty of sexual conduct against a child in the first degree. On November 13, 2001, the Appellate Division unanimously affirmed Paramore's conviction. See People v. Paramore, 732 N.Y.S.2d 410 (App. Div. 1st Dep't 2001). The New York Court of Appeals denied leave to appeal on March 26, 2002. See People v. Paramore, 769 N.E.2d 366 (N.Y. 2002).

In the instant Petition, Paramore raises e same claim he asserted before the Appellate Division, that his due process rights under the United States Constitution were Violated by his conviction of a criminal offense where the state allegedly failed to prove beyond a reasonable doubt each and every element of the offense. The relevant penal statute provides that: [ Page 5]

A person is guilty of a course of sexual conduct against a child in the first degree when, over a period of time not less than three months in duration: (a) he or she engages in two or more acts of sexual conduct, which includes at least one act of sexual intercourse, deviate sexual intercourse or aggravated sexual contact, with a child less than eleven years old.
N.Y. Penal Law ("NYPL") § 130.75 (McKinney 2003). At trial, and in the Petition, Paramore does not dispute the fact that he engaged in more than two acts of sexual conduct with Quanisha. He denies, however, that there is enough evidence to prove the requisite period of time for a first degree conviction — "no less than three months". Id. However, the Trial Court found, and the Appellate Division affirmed, that the prosecution's evidence was sufficient to support a finding that a number of instances of egregious sexual abuse lasting at least three months occurred.

Three principal pieces of evidence support the Appellate Division's determination that a reasonable trier of fact could have found that the sexual abuse committed by Paramore lasted at least three months: (1) Quanisha was vulnerable to sexual advances by Paramore from October 17, 1997 until April 10, 1998, the time period during which Paramore and Georgette were dating and Quanisha lived with her mother; (2) Quanisha testified that the abuse happened "more than one time," went on for a "long time," and stopped [ Page 6]

happening only when she was placed in her aunt's custody in April, (Transcript of the trial conducted on June 30, 1999 — August 9, 1999 ("Tr." or "Transcript") at 24); and (3) Quanisha testified that the abuse would happen when it was both "hot and cold" outside, (Id. at 24-25). See Paramore, 732 N.Y.S.2d at 410. The Appellate Division reasoned that Quanisha's testimony about a change in weather, the frequency and the length of time of the sexual abuse, as well as the seven-month period during which Paramore had access to Quanisha, supported the inference that the abuse lasted for at least three months: "The evidence, viewed as a whole, warranted the conclusion that defendant's course of sexual conduct against a child extended `over a period of time no less than three months in duration.'" Id. (citing NYPL § 130.75).

In his Petition, Paramore argues that Quanisha's testimony concerning the time-frame of the incidents can not be understood to support the required three-month element of his conviction due to the prosecutor's inconsistent and vague use of pronouns such as "it" and "this." Likewise, Paramore asserts that a six-year-old's testimony that the abuse commenced after a "short time" but lasted for a "long time," as well as when it was "hot and cold out," is far too vague for a court to consider sufficient evidence of the [ Page 7]

time period of his sexual misconduct. In raising these concerns, Paramore argues that the inconsistent testimony, coupled with the vague nature of Quanisha's time-frame, is legally insufficient to prove beyond a reasonable doubt that the sexual conduct occurred for at least three months.

II. DISCUSSION

A. STANDARD OF ...


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