Supreme Court of New York, Appellate Division, Third Department
Stillman, Friedman & Shechtman, P.C., New York City (Paul Shechtman of counsel), for appellant.
P. David Soares, District Attorney, Albany (Brett M. Knowles of counsel), for respondent.
Before: Mercure, J.P., Spain, Carpinello, Malone Jr. and Stein, JJ.
MEMORANDUM AND ORDER
Appeals (1) from a judgment of the County Court of Albany County (Herrick, J.), rendered October 7, 2004, upon a verdict convicting defendant of the crimes of sodomy in the first degree, sexual abuse in the first degree (nine counts), course of sexual conduct against a child in the second degree (two counts), endangering the welfare of a child (11 counts), forcible touching (two counts), sexual abuse in the second degree (two counts) and sexual abuse in the third degree, and (2) by permission, from an order of said court, entered February 27, 2007, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.
In late 2002 and 2003, defendant, a pediatric neurologist, was charged in two indictments, later consolidated, with 39 criminal counts alleging that he had sexual contact with numerous young male patients during medical examinations between 1997 and November 2002. After pretrial proceedings in which some counts were dismissed, defendant went to trial on 30 counts. He was ultimately convicted of 28 counts, 12 felonies nine counts of sexual abuse in the first degree (see Penal Law § 130.65  [counts 30 and 31],  [counts 1, 6, 8, 10, 15, 18 and 35]), two counts of course of sexual conduct against a child in the second degree (see Penal Law § 130.80  [b] [counts 10 and 20]), and sodomy in the first degree (see Penal Law 130.50  [count 14]) and 16 misdemeanors 11 counts of endangering the welfare of a child (see Penal Law § 260.10 ), two counts of forcible touching (see Penal Law § 130.52 ), two counts of sexual abuse in the second degree (see Penal Law § 130.60 ) and sexual abuse in the third degree (see Penal Law § 130.55).
The convictions stem from the testimony of 14 boys, none of whom knew one another (except two were brothers), whose families consulted defendant for their sons' various neurological problems. The boys described a variety of conduct that occurred for the most part after their parents complied with defendant's request that they leave the boys alone with him in the examining room, at which time defendant encouraged them to play a "controlled spitting" game with him, tickled, hugged or kissed them or play-wrestled with them, pushed his erect penis against their bodies, held them upside down by the ankles or had the boys sit or lay on him, during which time defendant's hands or face came into contact with the boys' genitals, mostly over clothing (several described defendant's direct underneath clothing contact with their penis), or the boys' faces were pushed into defendant's genital area over clothing. All of the contact occurred in the subterfuge of a medical exam by defendant, often accompanied by warnings not to tell anyone.
None of the boys immediately reported the sexual contact that occurred during their office visits, although the testimony established that many of them exhibited strong emotions and behavioral problems immediately after their visits, attempted to avoid further contact with defendant, and described some of defendant's bizarre conduct such as the controlled spitting game to their parents. Defendant's conduct was first partially revealed in September 2002, when patient A (the subject of counts 1 and 2) made revelations first to his mother and then to the Town of Colonie Police Department and the Department of Health's Office of Professional Medical Conduct (hereinafter OPMC), later providing a signed statement to police recounting the extent of defendant's sexual contact with him in December 2001, when he was nine years old. After another family made a complaint to OPMC, an OPMC investigator referred that patient (the subject of counts 3 through 5) to the Colonie police, and he signed a written statement describing defendant's forcible touching of him during an examination in January 2002, when he was 14 years old. Based upon these and other allegations, defendant was arrested. After media coverage of the arrest, over 100 people contacted the police and approximately 50 were interviewed, leading to the subject consolidated indictment.
Defendant did not testify at trial, but pursued the defense theory that any unusual behavior by him during patient exams was designed to create a rapport with and put at ease his young patients. The defense argued that, only after suggestive and coercive questioning by police and parents, were the boys persuaded to interpret his innocent and benign behavior as having a sexual component, leading to false or mistaken accusations. The defense repeatedly emphasized the boys' lengthy delays in disclosing defendant's conduct (ranging from 8 to 37 months) and the fact that most of the boys' disclosures of sexual contact did not occur until after defendant's initial arrest, in support of its theory that all of the boys' sexual contact allegations were the product of the publicity and suggestive questioning.
Upon his convictions, defendant was sentenced to an aggregate prison term of 48 years, with five years of postrelease supervision. Defendant's posttrial motion to vacate the judgment of conviction was denied without a hearing. Defendant now appeals from both the judgment of conviction and, with permission, the order denying his motion to vacate.
Initially, defendant challenges eight of his felony convictions as against the weight of credible evidence. We are not at all persuaded, finding that, given the overwhelming credible testimony, a different verdict would indeed have been unreasonable and, in any event, were we to weigh the probative force of the conflicting testimony and rational inferences to be drawn, we would find that the jury was more than justified in finding defendant guilty beyond a reasonable doubt (see People v Danielson, 9 N.Y.3d 342, 348 ; People v Romero, 7 N.Y.3d 633, 643-644 ; People v Bleakley, 69 N.Y.2d 490, 495 ). The challenged first degree sexual abuse counts (counts 1, 6, 8, 18 and 35) required proof that defendant subjected a person under age 11 to "sexual contact" (Penal Law § 130.65 ), i.e. "any touching of the sexual or intimate parts . . . for the purpose of gratifying sexual desire," including "the touching of the actor by the victim, as well as touching of the victim by the actor, whether directly or through clothing" (Penal Law § 130.00 ). Three patients in the challenged counts described defendant's touching of their genitals over clothing: patient A testified that defendant had him sit on defendant's chest and pushed the boy's penis into defendant's face (count 1); patient B described defendant placing his face in the boy's penis area and rubbing, an incident that was witnessed by patient B's mother, who also testified (count 6); and patient E recounted that defendant touched his penis and testicles (count 35). Patient C testified that defendant touched his penis over and underneath his clothing, and his adult sister testified that defendant had an erection before the family left the boy alone in the examination room with defendant (count 8). Patient D described how defendant had him lie on top of him, and defendant pushed the boy's head into his groin, and also how defendant held him upside down by the ankles causing the boy's face to make contact with defendant's genital area (count 18). The foregoing convincingly established that, in each instance, sexual contact occurred, and that it was for the purpose of defendant's sexual gratification, the latter being a subjective inquiry readily inferable from defendant's conduct and intimate genital contact with non-relatives with no medical justification (see People v Watson, 281 A.D.2d 691, 697-698 , lv denied 96 N.Y.2d 925');">96 N.Y.2d 925 ; see also People v Hill, 34 A.D.3d 1130, 1131 ).
Defendant also challenges as against the weight of the evidence his convictions for course of sexual conduct against a child in the second degree (counts 10 and 20), which requires proof that, over a period not less than three months, defendant, being over age 18, engaged in two or more acts of sexual conduct with a child less than age 13 (see Penal Law § 130.80  [b]). Patient F testified that on several occasions during the years he was treated by defendant 1997 to 2002 defendant rubbed his erect penis against the boy's clothed body, leg or hands (count 10). Patient G recounted instances during his treatments with defendant over a three-year period where defendant pinched his buttocks, touched his genitals for five seconds over clothing after fake-tripping, and held the boy down and pushed his chin into the child's groin-area for upwards of 10 seconds. We find that this testimony credibly established defendant's commission of these crimes as charged, including the durational requirement that they occurred over a period of at least three months (see People v Raymo, 19 A.D.3d 727, 729 , lv denied 5 N.Y.3d 793 ; see also People v Weber, 25 A.D.3d 919');">25 A.D.3d 919, 921 , lv denied 6 N.Y.3d 839 ). Finally, patient H's testimony established that, during an examination when he was 10 years old, defendant pulled the boy's pants and boxers down and defendant's lips came into contact with the boy's unclothed penis during the exam, supporting the conviction of sodomy in the first degree (count 14) (see Penal Law § 130.50 ). To the extent that defendant cites minor inconsistencies in any of the victims' testimony concerning tangential matters such as defendant's apparel, whether there was a sink in the room or a lock on the door, and the exact dates or frequency of visits we find that there was nothing incredible or unbelievable in their testimony, which the jury rationally credited after observing their demeanor, and that any uncertainties in their testimony did not concern whether the described sexual contact occurred as charged (see People v Weber, 25 A.D.3d at 921). As such, we find these convictions to be supported by the weight of credible evidence.
Next, defendant contends that certain remarks by the prosecutor during summation deprived him of a fair trial. We have closely examined each of his contentions, individually and collectively, many of which are unpreserved. At the outset, we note that the prosecutor's conduct and tenor during the trial itself, prior to summation, can be fairly characterized as even-handed, appropriate and not calculated to inflame or detract the jury. Viewing the summation as a whole, however, we agree that certain remarks exceeded the bounds of fair advocacy, but we find that they were not so egregious or prejudicial as to deprive defendant of a fair trial and did not operate to detract the jury from the issue of his guilt of the crimes charged (see People v Calabria, 94 N.Y.2d 519');">94 N.Y.2d 519, 523 ; People v Tarantola, 178 A.D.2d 768, 770 , lv denied 79 N.Y.2d 954 ).
First, defendant did not object to the prosecutor's remarks in summation that defendant fit the definition of a pedophile, to which the People's expert had testified. However, given that this reference arguably stems from County Court's mid-trial ruling to which defendant did raise an objection allowing the People's expert psychologist, Richard Hamill, to define the terms "pedophile" and "sexual fetish," we will address it. After Hamill, who has extensive experience treating sex offenders and their victims, testified regarding child abuse accommodation syndrome (see People v Weber, 25 A.D.3d at 923), the court heard arguments and permitted him, over objection, to generically define these terms and describe their characteristics . Notably, Hamill had never evaluated defendant or any of these victims, and never expressed any ...