People v. Scaringe

State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: March 17, 2016 105527

________________________________

THE PEOPLE OF THE STATE OF

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

MICHAEL J. SCARINGE,

Appellant.

________________________________

Calendar Date: January 6, 2016

Before: McCarthy, J.P., Garry, Rose and Devine, JJ.

__________

Barry J. Jones, Hudson Falls, for appellant.

Craig P. Carriero, District Attorney, Malone (Jennifer M.

Hollis of counsel), for respondent.

__________

Garry, J.

Appeal from a judgment of the County Court of Franklin

County (Rogers, J.), rendered August 24, 2012, upon a verdict

convicting defendant of the crimes of rape in the second degree,

sexual abuse in the second degree and endangering the welfare of

a child.

In the fall of 2009, defendant, who was then 61 years old,

was hired as the director of the Saranac Lake Youth Center, a

community agency that provided an after-school gathering place

for children and teenagers. Shortly thereafter, he befriended a

13-year-old Youth Center client (hereinafter the victim) by,

among other things, buying her gifts and exchanging text messages

with her. He also provided various forms of assistance to her

family. In December 2009, defendant brought the victim to his

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home in the Town of Harrietstown, Franklin County, directed her

into his bedroom, removed her clothes, placed and guided her hand

on his penis, and inserted his penis into her vagina. Defendant

was indicted on charges of rape in the second degree, sexual

abuse in the second degree (two counts) and endangering the

welfare of a child. One of the charges of sexual abuse in the

second degree was dismissed before trial. Following a mistrial

and a second jury trial, defendant was convicted of the remaining

charges and sentenced to an aggregate prison term of seven years,

followed by seven years of postrelease supervision. Defendant

appeals.

County Court did not err in denying defendant's motion to

dismiss the indictment on constitutional and statutory speedy

trial grounds. Whether the People have complied with their

statutory obligation to declare their readiness for a felony

trial within six months of the commencement of a criminal action

is "determined by computing the time elapsed between the filing

of the first accusatory instrument and the People's declaration

of readiness, subtracting any periods of delay that are

excludable under the terms of the statute and then adding to the

result any postreadiness periods of delay that are actually

attributable to the People and are ineligible for an exclusion"

(People v Cortes, 80 NY2d 201, 208 [1992]; accord People v Pope,

96 AD3d 1231, 1232 [2012], lv denied 20 NY3d 1064 [2013]; see CPL

30.30 [1] [a]). Here, the six-month period, comprising 181 days,

began to run when the felony complaint was filed on January 1,

2010 (see People v Cortes, 80 NY2d at 207 n 3; People v Lowman,

103 AD3d 976, 976-977 [2013]). The People declared readiness at

defendant's arraignment on June 23, 2010.1 That date fell less

than 181 days after the felony complaint was filed. We further

agree with the People that they are entitled to exclude an

additional prereadiness period resulting from an adjournment of

1

The People had previously declared readiness in a

memorandum filed on June 7, 2010, but did not submit proof that

they served this memorandum upon defense counsel or notified him

of its filing (see People v Kendzia, 64 NY2d 331, 337 [1985]).

Their brief upon appeal does not challenge defendant's contention

that the later date is therefore controlling.

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the grand jury proceeding. "[T]he People bear the burden of

establishing their entitlement to exclude any prereadiness delays

from the calculation under a CPL 30.30 motion and, as such, must

ensure that the record is sufficiently clear as to who is

chargeable for a delay" (People v Smith, 110 AD3d 1141, 1142

[2013] [internal quotation marks and citations omitted]; see

People v Seamans, 85 AD3d 1398, 1399 [2011]). Here, the People

submitted correspondence showing that defense counsel and the

District Attorney agreed to a 35-day adjournment of the grand

jury proceeding. This time period is excludable, as defense

counsel's consent was "clearly expressed" (People v Smith, 110

AD3d at 1143 [internal quotation marks and citation omitted]);

however, no such consent was shown as to any other adjournments

(see People v Smith, 82 NY2d 676, 678 [1993]; People v Battaglia,

187 AD2d 808, 810 [1992]).

The total period of prereadiness delay is thus well under

181 days, and we reject defendant's contention that the People

nevertheless failed to comply with their statutory obligation

because of subsequent postreadiness delay. The People moved for

reconsideration of County Court's prior order dismissing one of

the charges of sexual abuse in the second degree and for

permission to amend the indictment or, alternatively, for leave

to re-present the charges to another grand jury. The court

subsequently issued an order that denied reconsideration but

granted leave to the People to re-present the charges; nine days

later, the People advised the court that they would not do so.

Contrary to defendant's contention, the fact that the People

sought the alternative relief of re-presentment neither renders

their motion equivalent to a request for adjournment nor requires

these time periods to be charged to the People. Delay resulting

from a court's consideration of pretrial motions is not

chargeable to the People (see CPL 30.30 [4] [a]; People v

Moorhead, 61 NY2d 851, 852 [1984]), and a decision by the People

to seek a superseding indictment – or here, their consideration

of whether to do so – does not render illusory a previous

statement of readiness, which "is presumed to be . . . accurate

and truthful" (People v Miller, 113 AD3d 885, 887 [2014]

[internal quotation marks and citation omitted]; see People v

Galloway, 93 AD3d 1069, 1070 [2012], lv denied 19 NY3d 996

[2012]). Accordingly, the People complied with their statutory

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speedy trial obligations. Finally, we find no constitutional

violation. The extent of the delay was not "extraordinary"

(People v Romeo, 12 NY3d 51, 56 [2009] [internal quotation marks

and citations omitted], cert denied 558 US 817 [2009]). It

resulted primarily from pretrial motions filed by both parties,

the underlying charges were serious, defendant was not

incarcerated before trial, and he showed no impairment or

prejudice to his defense (see People v Taranovich, 37 NY2d 442,

446-447 [1975]; People v Pitt, 43 AD3d 1248, 1248-1249 [2007], lv

denied 9 NY3d 1008 [2007]).

Contrary to defendant's claim, County Court properly

refused to suppress statements that defendant made to police

investigators before he invoked his right to counsel. It is the

People's burden to prove that a defendant's statements to police

were voluntary and were not the product of unduly coercive or

deceptive police conduct, an analysis based upon the totality of

the circumstances (see People v Guilford, 21 NY3d 205, 208

[2013]; People v Neal, 133 AD3d 920, 922 [2015], lvs denied 26

NY3d 1110, 1107 [2016]). Here, police investigators asked

defendant to speak with them about an unspecified investigation.

In response to this request, defendant transported himself to the

police station, and the investigators immediately administered

Miranda warnings to him. Defendant confirmed that he understood

his rights and was "absolutely" willing to speak with police.

The investigators did not immediately disclose the true purpose

of the ensuing two-hour interview, but instead discussed various

other topics before asking defendant directly about the victim

and her accusations. Deceptive police conduct may be unduly

coercive, but only when it is so "extreme" that it overbears a

defendant's individual will (People v Thomas, 22 NY3d 629, 642

[2014]). Here, nothing in the investigators' mildly misleading

interviewing technique was so deceitful as to undermine the

voluntariness of defendant's choice whether to speak with them

(see People v Moore, 132 AD3d 496, 496-497 [2015]; People v

Dallas, 119 AD3d 1362, 1363 [2014], lv denied 24 NY3d 1083

[2014]; People v Lloyd, 118 AD3d 1117, 1119 [2014], lv denied 25

NY3d 951 [2015]). Defendant requested an attorney soon after the

investigators began to focus the questioning on the victim's

accusations, belying his contention that the earlier "social

conversation" had so diluted his awareness of his rights that the

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warnings should have been re-administered (People v Cox, 21 AD3d

1361, 1363 [2005] [internal quotation marks omitted], lv denied 6

NY3d 753 [2005]; see People v Sanders, 295 AD2d 639, 639 [2002],

lv denied 98 NY2d 771 [2002]).

Defendant's convictions were not against the weight of the

evidence. The victim testified that she and defendant talked and

spent time together and that he often gave her rides to her home,

school athletic events and cheerleading practice. During these

rides, defendant would sometimes try to kiss the victim or

"massage" her arm. She said that she would "try to block it out"

when he touched her, that it "wasn't comfortable feeling all the

time [and] it was kind of creepy in some ways." She stated,

however, that she thought of defendant as a friend and believed

that she loved him "[b]ecause he would always buy me, like, gifts

and make me feel like really close . . . like he cared for me but

not in a daughter way but like friends."

Defendant bought several gifts for the victim, such as a

costume for a Halloween dance and Christmas gifts, including

clothing and a stuffed animal.2 He also gave the victim a

prepaid cell phone with minutes already loaded on it, and sent

her an email directing her to use text messaging rather than

email for any "important or private" messages to him. Defendant

later told police that he obtained permission for this gift from

the victim's mother, but the mother denied that she knew about

the phone before the victim came home with it. The victim stated

that she had previously used her mother's cell phone to

communicate with defendant, but had deleted the messages so that

her mother would not find out about them. After defendant gave

her the phone, she used it to communicate with him "[p]retty much

daily," and defendant replenished the phone's minutes when

necessary.

2

According to a police investigator, defendant stated that

he selected only the victim to buy Christmas gifts for, even

though there were other young clients who also needed them,

because he could not afford to buy gifts for them all and "had to

choose the child that gives you the most bang for your buck."

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On Wednesday, December 23, 2009, the victim was picked up

at her home by an employee of a local youth advocacy group to

attend a meeting, and she was thereafter transported by this

employee to the Youth Center. The employee testified that she

had intended to drive the victim home afterwards, but the victim

asked if defendant could do so, and defendant "insisted" that he

was traveling in that direction anyway. Accordingly, the

employee obtained the mother's permission for defendant to drive

her home. Defendant later offered a different explanation,

telling police that he drove the victim home because the employee

was unwilling to drive in wintry weather. The victim testified

that after she left with defendant, he stopped at his house to

pick up luggage for a trip that he was about to take. The victim

initially remained in the car, but defendant then asked her to

come inside and go upstairs to get a suitcase. When she did so,

he "nudged" her into his bedroom, removed her clothes and his

own, placed her hand on his penis, got on top of her and had

intercourse with her. She testified that she was "partially okay

with [the encounter]" at first, but that the intercourse was

painful, so she asked defendant to stop. He did not do so.

Afterward, defendant took her home. The victim stated, "I still

felt like we were friends and I liked and, like, loved him." In

the next several days, he and the victim exchanged multiple

affectionate text messages in which they repeatedly stated that

they loved each other, sometimes abbreviated with the acronym

"ILY."

Several days later, the victim's mother discovered a text

message from defendant on the victim's phone that read in part,

"ILY you a million times, last Sunday was a dream come true and

so was Wednesday before I left."3 The mother confronted the

victim; she denied at first that anything had happened, but upon

further questioning, and being asked whether defendant had raped

her, she answered that he had. The mother then contacted police.

The victim initially told police and a sexual assault nurse

examiner that defendant had forced her to have intercourse with

him, but after additional police questioning, she stated that no

3

Defendant had taken the victim shopping to purchase the

cell phone and other gifts on the previous Sunday.

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force was used. At trial, she testified that she did not

initially tell the whole truth because she was afraid that she

would get into trouble, believed that it was somehow her fault,

and did not want her mother to think less of her. The People

presented the testimony of a psychologist, qualified as an expert

in the field of child and adolescent sexual abuse, who opined

that children who are subjected to sexual abuse may wish to keep

the abuse secret and find it difficult to talk about. He stated

that partial disclosure of sexual abuse can occur when victims

are confronted before they are psychologically ready to make a

full disclosure, and that a child may have conflicted feelings

about a sexual abuser and want to continue the beneficial aspects

of the relationship despite the abuse.

The sexual assault nurse examiner testified that she

obtained the victim's medical history, examined her and performed

various tests, but did not try to collect DNA evidence because

too much time had passed. The victim was diagnosed with a

urinary tract infection; the nurse stated that one of the most

common causes of this condition is sexual intercourse. The

pelvic examination revealed contusions and redness that the nurse

described as consistent with the victim's description of the

incident. Asked on cross-examination whether some of these

findings could have been caused by a tampon, she stated this was

possible but "highly unlikely."

A police investigator with expertise in retrieving data

from cell phones testified that he examined both defendant's

phone and the cell phone that defendant had given to the victim

and initially found no relevant text messages. However, by using

specialized software, the investigator was able to recover about

70 deleted messages between defendant and the victim. In

addition to mutual messages of love, the texts included repeated

requests from the victim not to tell her mother that they were

texting each other. In one message, defendant stated that he

missed the victim and would "jingle" her phone later to let her

know that he loved her. In another, he responded, "me tooooo" to

a message from the victim stating that she loved him. The

investigator also recovered deleted pictures from defendant's

phone, including a photo taken in the Youth Center office,

showing the victim sitting in defendant's lap with their faces

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close together. The victim testified that defendant took this

picture when she and defendant were in his office and alone in

the building; defendant had told police that clients did not

enter his office.

Defendant did not testify, but the police investigators who

interviewed him stated that he acknowledged that he knew the

victim "very well," had occasionally given her rides, had taken

her shopping and had driven her home on December 23, 2009. He

claimed, however, that the victim had remained outside on the

back porch throughout the visit. He further acknowledged that he

and the victim had exchanged text messages, although he claimed

that he never initiated them and merely responded to her. He

admitted that he had told the victim that he loved her, stating

that this "was just terminology that everyone used." Several

witnesses testified on defendant's behalf to call into question

the credibility of the victim and her mother, including one

witness who testified that he asked the victim on social media

whether she "had [defendant] arrested for accusations of rape,"

to which the victim responded that nothing had happened and asked

him to keep it secret, and two witnesses who said that they had

heard the mother state that she could sue defendant and the Youth

Center. The former witness, however, acknowledged on cross-

examination that he had a criminal history that included a

conviction for making a false statement, and the latter witnesses

admitted that they had hostile relationships with the victim and

her mother. Deferring to the jury's credibility assessments and

viewing the evidence in a neutral light, we find that the weight

of the admissible evidence amply supported the verdict (see

People v Romero, 7 NY3d 633, 643-644 [2006]; People v Fisher, 126

AD3d 1048, 1050-1051 [2015]; People v Clevenstine, 68 AD3d 1448,

1450 [2009], lv denied 14 NY3d 799 [2010]).

However, we agree with defendant that certain Molineux

evidence pertaining to defendant's alleged prior sexual contacts

with young girls should not have been admitted. It is beyond

dispute that evidence of a defendant's prior bad acts may not be

admitted solely to establish his or her bad character or

propensity to commit the charged crime (see People v Agina, 18

NY3d 600, 603 [2012]; People v Arafet, 13 NY3d 460, 464-465

[2009]). When such evidence is relevant to "a proper

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nonpropensity purpose, the decision whether to admit [it] . . .

rests upon the trial court's discretionary balancing of probative

value and unfair prejudice" (People v Dorm, 12 NY3d 16, 19

[2009]; see People v Barreto, 64 AD3d 1046, 1049 [2009], lv

denied 13 NY3d 834 [2009]). Here, the People moved before trial

for permission to offer, among other things, the testimony of

four adult female witnesses that defendant had sexual contact

with them during the 1970s when he was employed as their music

teacher and they were between 12 and 14 years old. The People

asserted that defendant had singled out and obtained the trust of

each of these students by such means as complimenting and

flattering them, and had then had sexual contact with them that,

in at least one case, included intercourse. County Court (Main

Jr., J.) issued a pretrial Molineux ruling allowing the People to

use the evidence as part of their case-in-chief. During the

second jury trial, County Court (Rogers, J.) eventually granted

defense counsel's repeated requests to reconsider the earlier

decision and narrowed the prior ruling. The court found that the

testimony was not relevant to the charges of rape in the second

degree or sexual abuse in the second degree, as defendant's

intent to commit these crimes could be inferred from commission

of the acts themselves, but that it was relevant to the mens rea

element of the charge of endangering the welfare of a child. The

court reasoned that defendant's actions in buying gifts for the

victim and exhibiting other kindnesses to her and her family were

noncriminal and could have been intended for purposes other than

gaining the victim's trust and inducing her to engage in sexual

acts with him. The four witnesses were thus permitted to

testify, but the court gave the jury limiting instructions

directing them to consider the evidence only as to the mental

state for the endangering charge, and not to consider it as to

the other two charges or for the purpose of determining whether

defendant had a propensity or predisposition to commit the crime.

In our view, this ruling was error. For the purposes of

this argument, we assume without deciding that the People are

correct in their contention that they were required to prove the

mental state that defendant had when he committed seemingly

generous acts towards the victim in the lead up to the sexual

assault. However, the requisite analysis balancing the

testimony's probative value against its potential for prejudice

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does not appear on the record. Such an analysis may be implied

where, as here, a court limits the admission of the evidence

based upon a record that includes defense counsel's vigorous

opposition to a Molineux application (see People v Milot, 305

AD2d 729, 731 [2003], lv denied 100 NY2d 585 [2003]). Even if

such an analysis may be implied here, the probative value of the

testimony for the limited purpose of showing defendant's mental

state in doing kindnesses for the victim was highly limited. The

alleged prior bad acts were extremely remote in time, taking

place decades previously. Further, there were significant

factual differences between the actions that defendant allegedly

took to gain the trust of his earlier alleged victims and those

he used with the victim. By contrast, the prejudicial impact of

the testimony – consisting of descriptions of multiple

reprehensible acts allegedly committed by defendant against

vulnerable children – was significant. As such, and despite the

limiting instructions with which County Court attempted to

minimize the resulting prejudice, we find that the prejudicial

impact of the proof so outweighed its limited probative value

that it should not have been admitted (see People v Brown, 114

AD3d 1017, 1020 [2014]; People v Buskey, 45 AD3d 1170, 1174

[2007]).

Nonetheless, we do not find that reversal is required. The

admissible proof of defendant's guilt is overwhelming, and "there

is no view of the evidence which would suggest a significant

probability that defendant would have been acquitted but for the

wrongful admission of this evidence" (People v Newkirk, 75 AD3d

853, 857 [2010] [internal quotation marks and citation omitted],

lv denied 16 NY3d 834 [2011]; see People v Crimmins, 36 NY2d 230,

242 [1975]). Defendant challenged the victim's credibility based

primarily upon her admission that, when first confronted, she

claimed that defendant had forcibly raped her. However, although

the victim later acknowledged that this part of her initial

account was false, the People offered explanatory expert

testimony, and the victim never withdrew her underlying claim

that defendant had sexual contact and intercourse with her. The

victim's testimony was corroborated by physical evidence that she

sustained injuries consistent with sexual intercourse and, most

significantly, by the multiple text messages introduced into

evidence in which defendant, among many other things, described

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the day on which the victim claimed that they had sexual

intercourse as "a dream come true." This evidence and the other

proof – in particular, the evidence that defendant singled out

the victim to receive his attentions and gifts, kept his

communications with her secret from the mother, gave her a cell

phone, kept it replenished with minutes, instructed her to use it

for "private" messages, sent her inappropriate messages and

permitted and encouraged her to do the same, and photographed her

sitting on his lap – are consistent with the 13-year-old victim's

account of events and entirely inconsistent with the 61-year-old

defendant's professional responsibilities or with any innocent

explanation. Accordingly, we find that the error is harmless and

no new trial is required (see People v White, 41 AD3d 1036, 1038

[2007], lv denied 9 NY3d 965 [2007]).

Defendant's remaining claims may be briefly addressed. He

did not receive the ineffective assistance of counsel. Although

defendant's first defense counsel made inappropriate comments

during his opening statement, precipitating a mistrial, he

nevertheless provided vigorous pretrial representation by, among

other things, obtaining dismissal of one of the sexual abuse

charges. Defendant's second defense counsel obtained

adjournments and other relief from County Court to enable her to

prepare for trial, and thereafter made persuasive and cogent

opening and closing statements, vigorously cross-examined the

People's witnesses, made effective objections and obtained the

previously-discussed reconsideration and narrowing of the

Molineux ruling. Her alleged failure to consult or hire an

expert witness on the issue of pediatric sexual abuse is not

evident from the record and, thus, is not properly raised on

direct appeal (see People v Hernandez, 125 AD3d 885, 887 [2015],

lv denied 26 NY3d 968 [2015]; People v Miller, 81 AD3d 854, 855

[2011], lv denied 16 NY3d 861 [2011]). As for defendant's claim

that neither his first nor his second defense counsel obtained

adequate discovery, the record reveals that an open file

discovery procedure was employed (see People v Clarke, 110 AD3d

1341, 1346 [2013], lv denied 22 NY3d 1197 [2014]). Accordingly,

defendant received "meaningful representation" (People v Baldi,

54 NY2d 137, 147 [1981]).

Finally, we wholly reject defendant's claim that his seven-

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year sentence is harsh and excessive. The record provides no

evidence of vindictiveness or other support for defendant's

assertion that he was penalized for exercising his right to

reject a plea offer and proceed to trial (see People v Pena, 50

NY2d 400, 412 [1980], cert denied 449 US 1087 [1981]; People v

Acevedo, 118 AD3d 1103, 1108 [2014], lv denied 26 NY3d 925

[2015]). In view of the nature of defendant's crimes and his

abuse of a position of authority to induce the 13-year-old victim

to engage in sexual contact with him, we find no abuse of

discretion or extraordinary circumstances warranting any

modification of the sentence (see People v Gibson, 2 AD3d 969,

973-974 [2003], lv denied 1 NY3d 627 [2004]; People v White, 261

AD2d 653, 658 [1999], lv denied 93 NY2d 1029 [1999]).

McCarthy, J.P., Rose and Devine, JJ., concur.

ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court