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Evidence of Pornography Allowed as Molineux Evidence to Show Intent

In affirming the defendant’s conviction for sexual offenses against a young child, the Third Department determined the trial court properly allowed “Molineux” evidence about pornography found on and/or searched for on defendant’s computer. Among the reasons for letting the evidence of pornography in evidence was to demonstrate defendant’s intent.  The Third Department wrote:

While  intent can  often be inferred from the sexual act itself…, here, defendant claimed to the police investigator and the CPS caseworker that much  of the sexual contact and the child’s knowledge occurred accidentally. The foregoing  was,  thus, admissible  to  prove  that defendant’s  charged  sexual contact  was not accidental or mistaken but, rather, was intentional and sexual … and motivated by his unusual sexual interest in young children. Supreme Court carefully considered  the  prejudicial  effect  of  the  evidence, limited or excluded much  of it, including the actual images and videos, and provided numerous contemporaneous and appropriate limiting  instructions. We  cannot conclude that the court abused its discretion in finding that the  probative  value  of the admitted evidence outweighed the potential for undue prejudice… People v Sorrell, 103426, 3rd Dept 7-3-13

 

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Prima Facie Case of Family Offenses Not Established (Forcible Touching and Sexual Abuse)

The Second Department found that Family Court properly determined mother failed to establish a prima facie case of the family offense of forcible touching and sexual abuse and properly ruled hearsay inadmissible:

The mother presented no direct evidence that the father touched the child “for the purpose of degrading or abusing” the child or “gratifying [his] sexual desire” (Penal Law § 130.52; see Penal Law §§ 130.00[3]; 130.55;…. Furthermore, although, in some instances, the element of intent may be inferred from the nature of the acts committed and the circumstances in which they occurred…, an intent to gratify sexual desire on the part of the father cannot be inferred from the totality of the circumstances here…. * * *

Contrary to the mother’s contention, the Family Court properly refused to permit her to admit hearsay testimony pursuant to Family Court Act § 1046(a)(vi). That section, by its own terms, is limited to a “hearing under . . . article [10] and article ten-A” of the Family Court Act (Family Ct Act § 1046[a]), and although the hearsay exception contained in Family Court Act § 1046(a)(vi) has been applied in the context of custody proceedings commenced pursuant to Family Ct Act article 6 where the basis of the custody proceeding is founded on neglect or abuse such that the issues are “inextricably interwoven”…, the Family Court properly refused to apply Family Court Act § 1046(a)(vi) in this case…. Matter of Khan-Soleil v Rashad, 2014 NY Slip Op 05074, 2nd Dept 7-3-13

 

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Objection to Molineux Evidence Not Preserved for Appeal

The Fourth Department noted that failure to request a limiting instruction with respect to Molineux evidence and the failure to object to the court’s failure to provide a limiting instruction rendered the issue unpreserved for appeal.  The Molineux evidence in this sexual abuse case was evidence of the physical (not sexual) abuse of the victim’s brother:

On appeal from a judgment convicting him following a jury trial of course of sexual conduct against a child in the first degree (Penal Law § 130.75 [1] [a]) and endangering the welfare of a child (§ 260.10 [1]), defendant contends that he is entitled to a new trial because Supreme Court neglected to give limiting instructions with respect to Molineux evidence establishing that he had subjected the victim’s brother to physical abuse (see People v Molineux, 168 NY 264). As defendant correctly concedes, that contention is unpreserved for our review because his attorney did not request a limiting instruction and failed to object to the court’s failure to provide one (see CPL 470.05 [2]…).    Because the Molineux evidence in question did not relate to prior sexual abuse, and because it appears from the record that defense counsel knew of the court’s failure to give limiting instructions and yet remained silent when the error could have been corrected, we decline to exercise our power to review that contention as a matter of discretion in the interest of justice … . People v Willians, 392, 4th Dept, 6-14-13

 

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Doctrine of Collateral Estoppel Re: Related Criminal Convictions Properly Applied

The Second Department determined Family Court properly applied the doctrine of collateral estoppel in an abuse proceeding based upon father’s criminal convictions:

The Family Court properly granted that branch of the motion of the ACS which was for summary judgment on the issue of the father’s derivative abuse. The ACS met its prima facie burden of showing that the doctrine of collateral estoppel is applicable…. “A determination in a criminal action may be given collateral estoppel effect in a Family Court proceeding where the identical issue has been resolved, and the defendant in the criminal action had a full and fair opportunity to litigate the issue of his or her criminal conduct”…. The father’s convictions of course of sexual conduct against a child in the first degree, course of sexual conduct against a child in the second degree, rape in the second degree, and endangering the welfare of a child were based upon the same acts alleged to constitute sexual abuse as set forth in Family Court Act article 10 petitions (see Family Ct Act § 1012[e][iii]).  Matter of Angelica M, 2013 NY Slip Op 04339, 2nd Dept, 6-12-13

 

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Expert Evidence About a “Date Rape” Drug Not Implicated in the Trial Did Not Require Reversal; Jury Deemed to Have Considered Only Evidence Supported by the Record​

In a full-fledged opinion by Justice Saxe, the First Department upheld the conviction for rape and for facilitating a sex offense with a controlled substance.  The controlled substance referenced in the indictment and the subject of proof at trial was ecstasy.  However, expert evidence of the effects of another drug, GBH, was allowed in at trial. The First Department determined the unsupported testimony about GBH did not require reversal because it could be assumed the jury relied upon the allegations supported by the evidence:

…[T]he reference in the experts’ testimony to GHB and its symptoms, and the People’s reference to that evidence in support of their summation, did not impermissibly present the jury with a new, legally inadequate theory…. Rather, at worst, the suggestion that the complainant may have also been drugged with GHB was merely a “factually unsupported theory” …. “[W]here jurors are given a choice between a factually supported and factually unsupported theory, it is assumed they have chosen the one with factual support” …. Here, we can assume that in determining whether the complainant was “rendered temporarily incapable of appraising or controlling [her] conduct owing to the influence of a narcotic or intoxicating substance administered to [her] without [her] consent,” the jurors relied on those of the People’s assertions that were supported by the evidence. People v Blackwood, 2013 NY Slip Op 03764, 2nd Dept, 5-23-13

 

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Sexual Assault by Son of Homeowners Not an Insured “Occurrence” Under Homeowners’ Insurance Policy

The Second Department determined a sexual assault allegedly perpetrated by the son of the homeowners was not an insured “occurrence” within the meaning of the homeowners’ insurance policy:

Here, Joseph M. allegedly was insured under a homeowner’s insurance policy issued by the plaintiff to his parents, which provided personal liability coverage for claims made against an insured for damages because of bodily injury caused by an “occurrence.” The policy defined the term “occurrence” as “an accident . . . which result[ed] in . . . bodily injury.”   The complaint in the underlying action alleged that the plaintiff in that action sustained bodily injury due to a sexual assault perpetrated by Joseph M. Since the bodily injuries allegedly sustained by the plaintiff in the underlying action were inherent in the conduct that Joseph M. allegedly engaged in, the alleged sexual assault cannot be construed as an accident within the definition of “occurrence” for which the plaintiff’s policy affords coverage … . State Farm Fire and Cas Co v Joseph M, 2013 NY Slip Op 03318, 2nd Dept, 5-8-13

 

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“Depraved Indifference to Human Life” Defined Differently in Family Law, as Opposed to Criminal Law, Context​

The Court of Appeals, in a full-fledged opinion by Judge Read, determined that the phrase “depraved indifference to human life” as it is used in Social Services Law 384-b(8)(a)(i) to define when a child has been “severely abused” does not have the meaning ascribed to the same phrase under the Penal Law.  In addition, the court clarified the statutory conditions which relieve a social services agency of the requirement to make diligent efforts to reunite the child with the abusive parent.  Judge Read wrote:

Social Services Law § 384-b (8) (a) (i) provides that a child can be found to be severely abused “as a result of reckless or intentional acts of the parent committed under circumstances evincing a depraved indifference to human life” (emphases added). Under the Penal Law, however, a crime requiring proof of an intent to kill can never be committed with depraved indifference … [“[I]t has never been permissible in New York for a jury to convict a defendant of depraved indifference murder where the evidence produced at trial indicated that if the defendant committed homicide at all, he committed it with the conscious objective of killing the victim” … . Additionally, “[a] defendant may be convicted of depraved indifference murder when but a single person is endangered in only a few rare circumstances” …, whereas acts of child abuse necessarily involve one-on-one violence. In short, our depraved indifference jurisprudence under the Penal Law has no bearing on whether a child is severely abused within the meaning of Social Services Law § 384-b (8) (a) (i). For purposes of that statute “circumstances evincing a depraved indifference to human life” refers to the risk intentionally or recklessly posed to the child by the parent’s abusive conduct.  Matter of Dashawn W …, No 71, CtApp, 4-25-13

 

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Convictions Based Entirely Upon Confession Reversed; Error to Allow Experiment in Evidence; Proof of Victim’s Helplessness Sufficient

In this sexual-crimes case, the Third Department discussed (among other issues): (1) the application of speedy trial rules when an initial indictment is dismissed and then charges stemming from the same incident are brought more than six months later in a second indictment; (2) the sufficiency of proof of the victim’s helplessness (intoxication); and (3) the inadmissibility of an experiment (opening a door with a credit card to demonstrate how defendant could have entered the house) which had nothing to do with the trial evidence.  All but two of the convictions were affirmed.  In reversing the two convictions which were based entirely on the defendant’s confession, the Third Department wrote:

We find that defendant’s convictions of criminal sexual act in the first degree must  be  reversed. “A person may not be convicted of any offense solely upon evidence of a confession or admission made by him [or her] without additional proof that the offense charged  has been  committed”  (CPL 60.50). While this additional proof “need  not corroborate every detail of the confession” …, both  of defendant’s criminal sexual act convictions were based solely upon his uncorroborated admissions that he  performed  oral sex on the victim. Defendant’s presence at the scene did not provide the necessary corroboration because the issue is not his identity or connection to the crime but, instead, whether  the crimes  occurred  at all. As there was no corroborating proof “of whatever weight,” these charges must be dismissed… . People v Bjork, 104014, 3rd Dept, 4-25-13

 

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“Prompt Outcry” Exception to Hearsay Rule Applied to Complaint Made After Several Days

The Third Department determined the “prompt outcry” exception to the hearsay rule applied to a very young victim who complained about the incident after several days:

Under the prompt outcry rule, “evidence that a victim of sexual assault promptly complained about the incident is admissible to corroborate the allegation that an assault took place” … . “‘[P]romptness is a relative concept  dependent  on  the  facts — what  might  qualify as  prompt  in one  case might  not in another'” ….   Here, the sexual contact occurred over a weekend during which the victim was in the care of defendant’s mother. The victim returned to his mother’s care on a Sunday and disclosed the events to her on the following Friday. Considering  the  victim’s young age and  the  familial relationship between  the victim and defendant, we  agree with County Court’s determination  that  the  hearsay  statements  fell within the prompt  outcry rule …, and  the court provided an  appropriate instruction limiting the use of the testimony … .  People v Lapi, 104623, 3rd Dept 4-4-13

 

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In a Sexual Abuse Case, Prosecutor’s Hypothetical Questions to Expert Which Mirrored Complainant’s Testimony Constituted Improper Bolstering

In another “sexual abuse” opinion by Judge Pigott, the Court of Appeals, as it did in People v Diaz (decided the same day), determined the expert’s testimony about Child Sexual Abuse Accommodation Syndrome, which included explanations about how an abuser gains the trust of the victim and encourages secrecy, etc., was admissible.  But here the prosecutor followed up the expert’s general testimony with hypothetical questions which mirrored the victims’ testimony.  The Court of Appeals determined the hypothetical questions constituted improper bolstering (but held the testimony to be harmless error under the facts):

We agree with defendant …that the expert’s testimony exceeded permissible bounds when the prosecutor tailored the hypothetical questions to include facts concerning the abuse that occurred in this particular case. Such testimony went beyond explaining victim behavior that might be beyond the ken of a jury, and had the prejudicial effect of implying that the expert found the testimony of this particular complainant to be credible – even though the witness began his testimony claiming no knowledge of the case before the court.  People v Williams, 53, CtApp 3-26-13

 

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