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People v. Zeitz

Supreme Court of New York, Fourth Department

March 24, 2017

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
JAMES A. ZEITZ, DEFENDANT-APPELLANT.

          KATHLEEN A. KUGLER, CONFLICT DEFENDER, LOCKPORT (EDWARD P. PERLMAN OF COUNSEL), FOR DEFENDANT-APPELLANT.

          THEODORE A. BRENNER, DEPUTY DISTRICT ATTORNEY, LOCKPORT (THOMAS H. BRANDT OF COUNSEL), FOR RESPONDENT.

         Appeal from a judgment of the Niagara County Court (Sara S. Sperrazza, J.), rendered March 19, 2004. The judgment convicted defendant, upon a jury verdict, of course of sexual conduct against a child in the first degree, rape in the second degree and endangering the welfare of a child.

         It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

         Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, course of sexual conduct against a child in the first degree (Penal Law former § 130.75 [a]) and rape in the second degree (§ 130.30 [1]). By failing to object when the victim testified, defendant failed to preserve for our review his contention that County Court abused its discretion in allowing the victim to offer sworn testimony without inquiring into her capacity (see People v Peppard, 27 A.D.3d 1143, 1143, lv denied 7 N.Y.3d 793; People v Reed, 247 A.D.2d 900, 900, lv denied 92 N.Y.2d 859; People v Strong, 172 A.D.2d 1059, 1059). In any event, that contention lacks merit. The victim, who was 16 years old at the time of the trial, was presumed competent to testify, and voir dire was not mandatory (see CPL 60.20 [2]; People v Martina, 48 A.D.3d 1271, 1272, lv denied 10 N.Y.3d 961; Peppard, 27 A.D.3d at 1143), and we conclude that there is no indication in the record that the court abused its discretion in permitting the victim to give sworn testimony (see Reed, 247 A.D.2d at 901; see generally People v Parks, 41 N.Y.2d 36, 45-46).

         Defendant further contends that the verdict is against the weight of the evidence. At the outset, we conclude that "a different verdict would not have been unreasonable inasmuch as this case rests largely on the jury's credibility findings with respect to the testimony of the victim" (People v Roman, 107 A.D.3d 1441, 1442, lv denied 21 N.Y.3d 1045; see generally People v Bleakley, 69 N.Y.2d 490, 495). Nevertheless, viewing the evidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9 N.Y.3d 342, 349), and "affording the requisite great deference to the jury given its opportunity to view the witnesses' " (Roman, 107 A.D.3d at 1442), we conclude that the verdict is not against the weight of the evidence (see generally Bleakley, 69 N.Y.2d at 495). Despite some minor inconsistencies in her trial testimony, we conclude that "nothing in the record suggests that the victim was so unworthy of belief as to be incredible as a matter of law' or otherwise tends to establish defendant's innocence of those crimes..., and thus it cannot be said that the jury failed to give the evidence the weight it should be accorded" (People v Woods, 26 A.D.3d 818, 819, lv denied 7 N.Y.3d 765; see People v Olson, 110 A.D.3d 1373, 1374, lv denied 23 N.Y.3d 1023; Roman, 107 A.D.3d at 1442).

         Contrary to defendant's contention, any inconsistencies in the testimony with respect to the dates of the crimes merely presented a credibility issue for the jury to resolve (see People v Woolson, 122 A.D.3d 1353, 1355, lv denied 25 N.Y.3d 1078), and "the fact that [the victim's] testimony concerning the time frame in which defendant ceased his sexual contact with her was vague and contradictory at times does not render her testimony incredible as a matter of law" (People v Bassett, 55 A.D.3d 1434, 1436, lv denied 11 N.Y.3d 922). Contrary to defendant's further contention, no corroboration of the victim's testimony was required inasmuch as the victim was competent to testify under oath (see CPL 60.20 [2], [3]; People v Izzo, 104 A.D.3d 964, 966, lv denied 21 N.Y.3d 1005). In any event, "several aspects of the victim's testimony were corroborated by other witnesses, " including the victim's mother (Roman, 107 A.D.3d at 1443). The testimony of the victim's mother was not " so inconsistent or unbelievable as to render it incredible as a matter of law' " (People v Shinebarger, 110 A.D.3d 1478, 1479, lv denied 24 N.Y.3d 1088).

         We reject defendant's contention that the circumstances under which the victim disclosed the abuse establishes that her testimony is not credible. Rather, we conclude that the jury was entitled to credit the testimony of the People's expert that victims of abuse often, as part of child sexual abuse accommodation syndrome, exhibit a "[d]elayed, conflicted, or unconvincing disclosure" of the abuse (see Woolson, 122 A.D.3d at 1355-1356; see generally People v Spicola, 16 N.Y.3d 441, 465, cert denied565 U.S. 942). Moreover, the jury was entitled to credit the victim's testimony that defendant exhibited violent behavior and threatened to harm her if she disclosed the abuse (see Olson, 110 A.D.3d at 1374). We note that the victim's testimony in that regard was corroborated by the testimony of the mother, who also explained that she had not disclosed the sexual abuse ...


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