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The People &C v. Michael Spicola

March 31, 2011

THE PEOPLE &C., RESPONDENT,
v.
MICHAEL SPICOLA, APPELLANT.



The opinion of the court was delivered by: Read, J.:

This opinion is uncorrected and subject to revision before publication in the New York Reports.

On November 16, 2006, defendant Michael Spicola was charged in a 10-count indictment with six counts of first-degree sodomy (Penal Law § 130.50 [3]), three counts of first-degree sexual abuse (Penal Law § 130.65), and one count of endangering the welfare of a child (Penal Law § 260.10) stemming from three occasions when he was accused of engaging in reciprocal oral to genital contact with a young boy. These sexual encounters were alleged to have occurred between March 1, 1999 and April 30, 1999, a 61-day period when the boy was a six-year old first grader; June 15, 2000 and August 31, 2000, a 77-day period during which the boy turned from seven to eight years old; and September 1, 2000 to November 30, 2000, a 91-day period when the boy was an eight-year old third grader.

At defendant's subsequent jury trial, the boy's mother, a single parent, explained that defendant, her cousin, had been "involved in [her] life" after she moved back to western New York, where she grew up; he helped her out with chores, and occasionally watched her young son. The boy was friendly with defendant's daughter and youngest stepson, who were just a few years older than he was; he visited defendant's residence and slept over in 1999 and 2000 a "[f]ew times a year," including during spring break in 1999. Defendant took the boy to sporting events, and was his soccer coach during 2004.

The mother first sensed that "something wasn't right" in early 2006, when defendant, who had a college degree in advanced accounting and was self-employed as a tax preparer, stopped by her house to drop off her tax return. Defendant approached her son and started to tickle him, which the mother did not consider to be anything other than ordinary horseplay; however, she thought her son's reactions were "weird." First, he "went . . . chest down on the ground . . . and tightened up and then . . . walked away" from defendant and retreated to the couch next to the chair in which she was seated. When defendant sat down beside the boy and rubbed his back, he responded by curling up into "the fetal position . . . and leaned away from" defendant.

At some point the week after this episode, the mother cautioned her son that if "anyone touche[d] [him] wrong, [he] need[ed] to tell," and reassured him that she would not care who it was, even if one of several male relatives whom she named, including defendant. The boy indicated that he had never experienced such a thing, saying "[N]o mom, it's fine." He testified that he answered in this way because he "didn't know if [he] could go to the police or not" and "thought [he] would get in trouble," and defendant "was close to the family and [he] just thought something really bad would happen" if he revealed that defendant had touched him inappropriately. But after the boy saw a video about on-line sexual predators, shown in his eighth-grade technology class in early April 2006, he realized that what defendant had done to him "was wrong," and "felt like [he] should tell someone." He resolved to confide in his mother, but still hesitated. Then, as he was showering before going to school on May 15, 2006, the day after Mother's Day, he felt as though he "couldn't hold it in anymore," and he "just ran and told" his mother that "Mike had touched [him] many different ways."

The boy made this disclosure at the age of 13, seven years after the first and almost six years after the last instance of alleged molestation. Upon hearing her son's account, the mother immediately called her own mother, who was at work at the time, and the boy's father, asking them to come to her house urgently. She testified that her son sat on the living room couch and cried for a long time after he divulged his secret, and that he was "withdrawn, sad, scared" as the day wore on, and for many months thereafter. The boy's grandmother and father recalled finding him crying when they arrived; they described the mother as angry and distraught. The mother contacted the police, and a detective from the Erie County Sheriff's Department called her back later that day. The following day, she took the boy to the Child Advocacy Center (CAC) in Buffalo, where he was interviewed by a prosecutor and examined by a nurse-practitioner, who recommended counseling.

On the witness stand, the boy recounted the sexual abuse as having taken place while defendant played "knee hockey" alone with him, in the nude, in the living room of defendant's home, generally in the afternoon. In this game, the players got down on their knees and tried to shoot a ball into designated goals, using miniature hockey sticks. On cross-examination, defense counsel pressed two considerations in particular: that the boy had taken a long time to report these events; and that he had continued to associate with defendant in the meantime. Thus, defense counsel asked questions causing the boy to acknowledge that for six or seven years he neglected to inform his mother, his grandmother, his friends, his teachers or any doctor who examined him; and that he visited defendant's house after the last alleged sexual encounter, saw defendant several times a week during soccer season in 2004, when defendant coached his team, and accompanied him on outings to stock car races and professional hockey games when he was 12 or 13 years old. Defense counsel also elicited an admission that the boy had not mentioned one vivid detail of his story to the grand jury.

Defendant testified on his own behalf. He stated that the boy first slept over at his residence during Christmas vacation in 1999, not the spring of 1999, and that he next slept over, accompanied by a friend, during Christmas vacation in 2000 and the Martin Luther King holiday weekend in 2001. Defendant asserted that he was never at any time alone in his house with the boy because there were always other family members around while the boy was there. Further, the boy "beg[ged]" to stay overnight after a family reunion in the summer of 2001 because "a week or two before [he] bought [his] kids a trampoline and [the boy] was having a lot of fun playing on the trampoline." According to defendant, the next time the boy slept over was after accompanying him and his youngest stepson to a stock car race over Memorial Day weekend of 2004; and he stayed over again, with another boy, after again going to a stock car race with defendant, this time in late September 2004. Defendant testified that he took the boy to professional hockey games in November 2005 and March 2006.

In defendant's telling, "knee hockey" was a game "invented" by his three stepsons, which the children played in the living room of his house. He sometimes joined in, "[j]ust to have fun with [his] kids," and the boy played with them when he visited. Defendant flatly denied ever having played "knee hockey" alone with the boy; he flatly denied the charges in the indictment.

On cross-examination, the prosecutor brought out that defendant had omitted his several-year stint as a full-time school bus driver from the lengthy work history he gave during direct examination. Defendant admitted that he was given a directive by the school superintendent in January 2002, and resigned from his post in May 2003 by mutual agreement with the union and the school district, although he denied ignoring the directive.*fn1 He called the boy "a normal kid" with whom he had enjoyed good relations; he likewise indicated that he had always gotten along well with the boy's mother. Although defendant suggested that he might have "some ideas" about why the boy would lie, he never shared these ideas with the jury. He admitted tickling and wrestling with the boy on occasion. Defendant denied having told the detective with whom he spoke by telephone on May 20, 2006 that he may have accidentally touched the boy in an intimate area, but noted that "whenever someone is wrestling you can accidentally touch someone's private parts."

The jury convicted defendant on all counts. On August 9, 2007, the trial judge sentenced him to concurrent determinate terms of 12 years for first-degree sodomy; seven years for first-degree sexual abuse; and one year for endangering the welfare of a child. Defendant appealed on numerous grounds, including that the trial judge erred when he permitted testimony from a nurse-practitioner who examined the boy and expert testimony from a clinical social worker relating to Child Sexual Abuse Accommodation Syndrome (CSAAS). On April 24, 2009, the Appellate Division affirmed (61 AD3d 1434 [4th Dept 2009]). A Judge of this Court granted defendant permission to appeal (14 NY3d 805 [2010]), and we now affirm.

I. The Nurse-Practitioner

A. The Objection

Defense counsel sought to preclude the testimony of the pediatric nurse-practitioner who examined the boy the day after he confided in his mother. He advanced several arguments: first, that the nurse "would not be in any position to give an opinion that the young man was abused"; second, she found no physical evidence of sexual abuse; and third, "she would be asked about a history that she received from [the boy], and by allowing that testimony that would be improper bolstering. It's not outcry because it's 6 or 7 years later. Even though they are statements made to a nurse they wouldn't have any relevance to any diagnosis because she doesn't make any diagnosis.

"So . . . to allow her to testify and to tell the jury about the history she received and any of her alleged findings would be unfairly prejudicial."

When the trial judge asked the prosecutor why the nurse was being called, she gave several reasons. First, she pointed out that a nurse-practitioner is, unlike a registered nurse, competent and authorized to make a medical diagnosis; she cited CPLR 4518 (Business records); she asserted that jurors may question the lack of physical evidence in a sexual abuse case, and the nurse could explain that this circumstance was not inconsistent with the boy's account, which was especially important "when there [are] references by the defense . . . there is no medical evidence."

The prosecutor also told the judge that she expected the nurse "to describe her actual observations, both in terms of physical findings . . . the lack of objective evidence [of sexual abuse], but also her observations of the child's demeanor [which] would relate to his credibility to rebut a potential defense of fabrication here." Finally, she argued that the delay in reporting did "not in any way make [the nurse's] subjective history or the patient's objective history irrelevant," as the nurse would still have to ask the same questions and perform the same examination "whether it's 1 month or 6 years" after the alleged sexual abuse occurred.

The judge agreed that "the issue" was whether the boy's statements were germane to his treatment, and asked what the boy told the nurse. The prosecutor responded that he had "describe[d] basically the oral contact." The judge then said, "I presume it's not a detailed account?" The prosecutor answered affirmatively, and told the judge that she had warned the nurse to stay away from identifying the perpetrator, or where or how many times the alleged sexual abuse occurred. The judge asked if she planned to offer the medical record into evidence. The prosecutor responded that she would rely solely on the nurse's testimony "because there [were] so many things . . . that would be improper [she] would have to redact the whole record." The judge ruled that the nurse could testify.

B. The Testimony

The nurse, who had extensive and specialized training and experience examining child victims of sexual and physical abuse, was asked to perform a medical examination of the boy on May 16, 2006 at the CAC, where she was employed. The boy was at the CAC that day for an "MD, multiple disciplinary interview." She testified that she would first take a child's medical history and then perform a "top to bottom physical exam." In terms of taking a medical history, she would ask a child why he or she was at the CAC, and would inquire about the child's health because she "need[ed] to understand if there [were] any concerns or problems going on [and] what [the child's] developmental ability [was]." She stated that it would be necessary for her to take a subjective history from a patient even where suspected sexual abuse occurred a number of years earlier because she "need[ed] to know [of] any problems, any lesions, any sores, any concerns." When asked if that was why she took a subjective history of the boy, she answered, "Yes, it is."

The prosecutor reminded the witness that she could not "discuss . . . details other than what was specifically told to [her] that was relevant to [her] diagnosis and treatment"; and then asked what the boy said about what had happened to him. She answered that the boy indicated that "he had been touched inappropriately," and "gestured to his groin that it had been put in his [sic] mouth and he was asked to put somebody else's in his mouth." She testified that the boy was "embarrassed, [with] downcast eyes, flushed face" when he gave her this information.

The prosecutor next posed questions to the nurse about the physical examination that she performed on the boy. The nurse described the first part as a general examination akin to a regular physical; she testified that the boy's heart rate was elevated, which indicated to her that he was "nervous." The last part of the examination focused on the genital and rectal area. Because of what he told her "about what had happened to him," she "was looking to make sure that the exam would have been normal, that there were no lesions, sores, discharges." The prosecutor next asked the nurse if the absence of lesions was in any way "inconsistent with what [the boy] told [her] about what had happened." She replied that it was not "[b]ecause we generally would not see or many times . . . do not see medical evidence from children who have been touched inappropriately."

The nurse added that she "spent quite awhile talking with" the boy, who was concerned that "people would know that this happened to him." Additionally, "he had some body changes as he was growing up and he was very uncomfortable with that, so [she] spent a long time talking about body change, hormones, normal growth, normal things that happen to your body." The nurse was asked how she could spot the boy's discomfort, and she replied, "He had downcast eyes. He was flushed, heart rate was up." She "reassured [the boy] that he hadn't done anything wrong and that his body was normal."

On cross-examination, the nurse acknowledged that she had no way of knowing whether the history of sexual abuse that the boy related to her was true or false; and that it would not be unusual for a 13-year old boy to exhibit signs of nervousness when talking to a stranger about "private matters." Further, defense counsel brought out that she knew what physical signs or symptoms to look for that "could be consistent with abuse," and that she "found no physical evidence to support the history that [the boy] even had been touched inappropriately."

This cross-examination caused the prosecutor to return on redirect examination to ground that she had already covered: whether it was "at all unusual" that the nurse did not detect "any lesions or actual physical injury." The nurse replied that it was not unusual. On recross-examination, defense counsel countered, asking "And the fact that you found nothing is just as consistent with this child never having been abused or never having been molested, right?" The nurse responded "That is correct, sir."

C. Discussion

Defendant contends that the nurse-practitioner's testimony improperly bolstered the boy's credibility "with regard to exactly what he claimed had occurred" by "describ[ing] the exact acts" that he related to her. To the extent that the boy's responses to the nurse's inquiries about why he was at the CAC were germane to diagnosis and treatment -- and she testified that they were -- these responses were properly admitted as an exception to the hearsay rule (see People v Ortega, 15 NY3d 610 [2010]). Indeed, without the boy's explanation of what he claimed to have happened and when, the nurse would hardly have known where to begin her examination. Moreover, the nurse did not identify who the boy said touched him (cf. People v Caccese, 211 AD2d 976, 977 [3d Dept 1995] [allowing nurse to testify that child informed her that foster mother had caused bruises on his hand]); she acknowledged that she did not know whether the boy was being truthful. The testimony about the nature of the alleged abuse consisted of a single question and a brief answer. And the nurse's observations of the boy's demeanor and manner were relevant to her medical decisions about the necessity for counseling or psychological therapy or other treatment.*fn2

In People v Buie (86 NY2d 501 [1995]), we considered whether the admission of a 911 tape under the hearsay exception for present sense impression, where the declarant was available and testified at trial, improperly bolstered his trial testimony. We explained that the term "bolstering" has "doctrinally referred to two distinct situations, both related to the rule against hearsay" (id. at 509-510). The first common use of the term arose "in the context of eyewitness identification, [where] the testimony of a third party (typically, a police officer) to the effect that the witness identified a defendant as the perpetrator on some prior occasion [was] generally inadmissible" because the "identification [was] hearsay, not falling within any exception" (id. at 510). Second, the term "bolstering" "refers to the fortification of a witness's testimony and credibility through the use of a prior consistent statement . . . Such evidence may be admissible, but only to rebut a claim of recent fabrication

. . A prior consistent statement is admitted under these limited circumstances as an exception to the hearsay rule" (id. [citations omitted]).

We concluded that the admission of the 911 tape did not constitute improper bolstering, observing that "merely because a statement suffers some impediment under one hearsay exception does not preclude the proponent of the evidence from satisfying a court that a different, better-fitting exception fully applies. That is when the trial courts . . . exercise their evaluation of probativeness versus undue prejudice" (id. at 511). Although the 911 tape "plainly did not qualify for admission under the prior consistent statement exception, as there was no charge of recent fabrication . . . [it] fulfilled all the requirements independently for the present sense impression exception" and was therefore admissible (id.). Similarly, the nurse's complained-of ...


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