SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
May 9, 2011
THE PEOPLE OF THE STATE OF NEW YORK,
Appeal from a judgment of the District Court of Nassau County, First District (Sondra K. Pardes, J.), rendered December 4, 2008. The judgment convicted defendant, after a non-jury trial, of endangering the welfare of a child.
People v Best (Emil)
Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on May 9, 2011
PRESENT: TANENBAUM, J.P., MOLIA and LaCAVA, JJ
ORDERED that the judgment of conviction is affirmed.
The People charged defendant with endangering the welfare of a child (Penal Law § 260.10 ) based upon an allegation that defendant had offered a minor $50 to expose his penis. The information alleged that the complainant, who was otherwise unidentified, was 12 years old at the time of the offense. In a supporting deposition, the complainant detailed the incidents of his encounter with defendant, which involved a conversation between defendant and the complainant regarding the size of the latter's penis and included defendant's offer of $50. The information also referred to an annexed statement, which defendant had signed, wherein defendant acknowledged that he had been given and waived the Miranda warnings, "freely and voluntarily" admitted the facts as alleged by the minor, and stated that he had first met the complainant 10 years previously when the complainant was two years old. Prior to trial, defendant moved for the issuance of a subpoena for the complainant's school records, and, separately, to, among other things, suppress the statement. Following a hearing, the District Court denied defendant's application to suppress the statement, finding that defendant had validly waived his rights and voluntarily executed his statement. After a non-jury trial, the District Court convicted defendant as charged.
On appeal, defendant argues that the accusatory instrument was insufficient on its face; in particular, that the allegation that the complainant was 12 years old at the time of the offense was not based upon personal knowledge; that the District Court should have suppressed defendant's statement; that defendant was improperly handcuffed during the hearing and trial; that the District Court should have granted defendant's motion to subpoena the complainant's school disciplinary and counseling records; that the evidence was legally insufficient to establish his guilt; and that the verdict was against the weight of the credible evidence.
These contentions are without merit. The information was sufficient on its face. While the bare allegation that the victim was 12 years old at the time of the offense was hearsay, defendant waived any objection thereto by failing to move before trial to dismiss the information on that ground (People v Casey, 95 NY2d 354 ; People v Coleman, 28 Misc 3d 24 [App Term, 2d, 11th & 13th Jud Dists 2010]). In any event, read in a reasonable and not overly technical manner (People v Casey, 95 NY2d at 362), the information, along with the annexed supporting deposition and the statement by defendant (CPL 100.15, 100.40 ), sufficed to allege that the complainant was less than 17 years old and that defendant knowingly acted in a manner likely to result in harm to the child (see Penal Law § 15.05 ; People v Johnson, 95 NY2d 368, 372 ; People v Simmons, 92 NY2d 829, 831 ).
In addition, the hearing record supports the District Court's conclusion that defendant understood the "immediate import" of the Miranda warnings without the necessity of further explication by the investigating officer (People v Williams, 62 NY2d 285, 289 ; e.g. People v Hernandez, 46 AD3d 574, 575 ; People v Marx, 305 AD2d 726, 728 ). At the hearing and at the non-jury trial, the District Court ordered that defendant be handcuffed. There was no objection by the defense that such continuing restraint violated defendant's due process rights (cf. Deck v Missouri, 544 US 622, 635 ; People v Rouse, 79 NY2d 934, 935 ) or inhibited defendant's ability to communicate with counsel and otherwise to assist in his defense. Moreover, there was no jury before whom the display of such restraint was "inherently prejudicial" (People v Vigliotti, 203 AD2d 898, 898 ), and "[u]nlike a lay jury, a Judge by reasons of . . . learning, experience and judicial discipline, is uniquely capable of distinguishing the issues and of making an objective determination based upon appropriate legal criteria, despite awareness of facts which cannot properly be relied upon in making the decision" (People v Moreno, 70 NY2d 403, 406 ).
The District Court properly denied defendant's application to subpoena the complainant's school disciplinary and counseling records for the purpose of establishing a lack of injury to the complainant. Actual harm to the victim is not an element of the offense (People v Simmons, 92 NY2d at 830; People v Kalen, 68 AD3d 1666, 1667 ; People v Ramnauth, 8 Misc 3d 128[A], 2005 NY Slip Op 50968[U] [App Term, 9th & 10th Jud Dists 2005]). The defense later renewed the application, arguing that the records were necessary for impeachment purposes should the complainant deny the discipline and counseling resulting from alleged sexual activities with schoolmates. The District Court denied the motion, but without prejudice to the defense again requesting the relief should matters arise on cross-examination whereby the records would be useful to the defense (People v Bugayong, 182 AD2d 450, 451 ). However, the defense made no such request.
Given defendant's admission and the unrebutted testimony of the complainant, it cannot be said that the proof, viewed in the light most favorable to the People (People v Contes, 60 NY2d 620, 621 ), was legally insufficient to establish that defendant "was aware that his conduct would likely be injurious to [the] child" (People v Hitchcock, 98 NY2d 586, 592 ; see also People v Johnson, 95 NY2d at 372). The complainant testified that he felt "disgusted" and "violated" by an adult offering him money to expose his private parts, and the trial court was entitled to infer from defendant's conduct that he knew that such conduct presented a likelihood of endangering the child's welfare.
In fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15 ; People v Danielson, 9 NY3d 342 ), we note that resolution of issues of credibility, as well as the weight to be accorded the evidence presented, is to be decided by the trier of fact, which had the opportunity to see and hear the witnesses (People v Romero, 7 NY3d 633, 643-646 ), and its determinations should be given great deference and should not be disturbed unless it appears that the trier of fact failed to give the evidence the weight it should be accorded (see People v Lane, 7 NY3d 888 ). Upon this record, it cannot be said that the verdict was against the weight of the credible evidence.
Accordingly, the judgment of conviction is affirmed.
Tanenbaum, J.P., Molia and LaCava, JJ., concur.
Decision Date: May 09, 2011
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