LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (NICHOLAS P.
DIFONZO OF COUNSEL), FOR DEFENDANT-APPELLANT.
LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (WILLIAM G.
ZICKL OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CARNI, NEMOYER, TROUTMAN, AND SCUDDER,
from a judgment of the Genesee County Court (Robert C.
Noonan, J.), rendered January 22, 2014. The appeal was held
by this Court by order entered June 17, 2016, decision was
reserved and the matter was remitted to Genesee County Court
for further proceedings (140 A.D.3d 1784). The proceedings
were held and completed.
hereby ORDERED that the judgment so appealed from is
unanimously modified as a matter of discretion in the
interest of justice and on the law by reversing those parts
convicting defendant of sexual abuse in the first degree
under counts 2, 5, 13 through 17, and 25 through 28 of
indictment No. 5548 and dismissing those counts of the
indictment, and as modified the judgment is affirmed.
Defendant appeals from a judgment convicting him upon a jury
verdict of 28 counts of sexual abuse in the first degree
(Penal Law § 130.65 ) and three counts of criminal
contempt in the second degree (§ 215.50 ). The
charges arose from allegations that defendant sexually abused
two female victims less than 11 years old. We previously
remitted this matter to County Court for a ruling on
defendant's motion for a trial order of dismissal
(People v Sprague, 140 A.D.3d 1784). Upon remittal,
the court denied the motion.
respect to the facts of this case, we note that the grand
jury charged defendant by indictment No. 5548 with 28 counts
of sexual abuse in the first degree. A bill of particulars
provided that counts 1, 3, 4, 6 through 12, and 18 through 24
were based on allegations that defendant touched a
victim's vagina, and counts 2, 5, 13 through 17, and 25
through 28 were based on allegations that defendant had a
victim touch his penis. Before trial, the court consolidated
indictment No. 5548 with two other indictments charging
defendant with additional crimes. Both victims testified at
trial. One victim testified that, on two separate occasions,
defendant touched her vagina, and that, on one of those
occasions, he had her touch his penis. The other victim
testified that, on 15 separate occasions, defendant touched
her vagina, and that, on 10 of those occasions, he had her
touch his penis.
agree with defendant that the indictment is multiplicitous
because it included separate counts of sexual abuse in the
first degree for incidents in which defendant allegedly
touched the victim's vagina while he had the victim
simultaneously touch his penis. Although defendant did not
challenge the indictment on that ground and thus failed to
preserve his contention for our review (see People v
Fulton, 133 A.D.3d 1194, 1194-1195, lv denied
26 N.Y.3d 1109, reconsideration denied 27 N.Y.3d
997), we exercise our discretion to review the contention as
a matter of discretion in the interest of justice
(see CPL 470.15  [a]).
indictment is multiplicitous "when a single offense is
charged in more than one count" (People v
Alonzo, 16 N.Y.3d 267, 269; see People v
Casiano, 117 A.D.3d 1507, 1509). A person commits the
criminal offense of sexual abuse in the first degree when he
or she subjects a person under 11 years old to sexual contact
(see Penal Law § 130.65 ). Nevertheless, a
defendant may not be charged with separate counts of sexual
abuse in the first degree for each instance of unlawful
sexual contact where the instances of sexual contact
constitute "a single, uninterrupted criminal act"
(Alonzo, 16 N.Y.3d at 270; see People v
Kelly, 148 A.D.3d 585, 585). Here, for each instance of
defendant touching a victim's vagina, defendant was
properly charged with a single and distinct count. By
contrast, for each instance of defendant compelling a victim
to touch his penis while defendant was simultaneously
touching that victim's vagina, defendant was charged with
two separate counts. Charging two separate counts under those
facts was improper inasmuch as the actions alleged in each
pair of counts constituted a single, uninterrupted criminal
act. We thus conclude that the indictment was multiplicitous,
and we therefore dismiss counts 2, 5, 13 through 17, and 25
through 28 of indictment No. 5548.
the evidence in the light most favorable to the People
(see People v Contes, 60 N.Y.2d 620, 621), we
conclude that the evidence is legally sufficient to support
the convictions on the remaining counts (see People v
Bleakley, 69 N.Y.2d 490, 495). We further conclude that,
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), the verdict is not against the weight of
the evidence (see generally Bleakley, 69 N.Y.2d at
495). Insofar as defendant contends that he was denied
effective assistance of counsel, we reject that contention
(see generally People v Baldi, 54 N.Y.2d 137, 147).
failed to preserve for our review his contention that the
court did not provide him with an opportunity to propose a
response to a jury note (see People v Nealon, 26
N.Y.3d 152, 158). We reject defendant's contention that
preservation is not required because the court's handling
of the note constituted a mode of proceedings error (see
generally People v O'Rama, 78 N.Y.2d 270, 279).
"Where, as here, counsel has meaningful notice of a
substantive jury note because the court has read the precise
content of the note into the record in the presence of
counsel, defendant, and the jury, the court's failure to
discuss the note with counsel before recalling the jury is
not a mode of proceedings error. Counsel is required to
object to the court's procedure to preserve any such
error for appellate review" (Nealon, 26 N.Y.3d
at 161-162). The record establishes that defendant had
meaningful notice of the jury note. Indeed, the jury note was
merely a clarification of prior jury notes and there is no
dispute that defendant had meaningful notice of, and an
opportunity to propose a response to, the prior jury notes.
Moreover, the court read the subject jury note into the
record in the presence of defense counsel, defendant, and the
jury (see id.; People v Dame, 144 A.D.3d
1625, 1625, lv denied 29 N.Y.3d 948).
reject defendant's contention that the court's
Molineux ruling constituted an abuse of discretion.
The victims' testimony that defendant assaulted their
mother was admissible to explain the victims' delay in
reporting the sexual abuse (see People v Nicholson,
26 N.Y.3d 813, 829-830; People v Hill, 121 A.D.3d
469, 469, lv denied25 N.Y.3d 1165; see
generally People v Molineux, 168 NY 264, 291-294).
Moreover, the court's detailed written Molineux
ruling precluded testimony about events that the victims did
not observe, as well as testimony about defendant's drug
use and his encouraging one of the victims to sell drugs,
thus demonstrating ...