        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1102
KA 13-00200
PRESENT: SCUDDER, P.J., FAHEY, CARNI, LINDLEY, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DAVID D. DUELL, JR., DEFENDANT-APPELLANT.


DIMARTINO LAW OFFICE, OSWEGO (CARL L. SCHMIDT OF COUNSEL), FOR
DEFENDANT-APPELLANT.

DAVID D. DUELL, JR., DEFENDANT-APPELLANT PRO SE.

GREGORY S. OAKES, DISTRICT ATTORNEY, OSWEGO (AMY L. HALLENBECK OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Oswego County Court (Walter W.
Hafner, Jr., J.), rendered October 18, 2012. The judgment convicted
defendant, upon a jury verdict, of sexual abuse in the first degree,
sexual abuse in the second degree (seven counts), criminal sexual act
in the first degree, course of sexual conduct against a child in the
first degree and endangering the welfare of a child (three counts).

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by reversing those parts convicting
defendant of sexual abuse in the first degree and sexual abuse in the
second degree under the third and ninth counts of the indictment and
dismissing counts two, three and nine of the indictment and as
modified the judgment is affirmed.

     Memorandum: On appeal from a judgment convicting him following a
jury trial of, inter alia, criminal sexual act in the first degree
(Penal Law § 130.50 [4]), course of sexual conduct against a child in
the first degree (§ 130.75 [1] [b]), sexual abuse in the first degree
(§ 130.65 [1]), and seven counts of sexual abuse in the second degree
(§ 130.60 [2]), defendant contends in both the main brief and in the
pro se supplemental brief that the conviction is not supported by
legally sufficient evidence. Although defendant failed to preserve
his contention for our review inasmuch as he failed to renew his
motion for a trial order of dismissal after presenting evidence (see
People v Hines, 97 NY2d 56, 61, rearg denied 97 NY2d 678), we note
that preservation is not required with respect to the sufficiency
challenge raised in the main brief. The gravamen of defendant’s
contention is that the evidence at trial is legally insufficient to
support the conviction because it varied from the limited theories of
sexual contact alleged in the indictment. “Where the charge against a
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                                                         KA 13-00200

defendant is limited either by a bill of particulars or the indictment
itself, the defendant has a ‘fundamental and nonwaivable’ right to be
tried only on the crimes charged” (People v Hong Wu, 81 AD3d 849, 849,
lv denied 17 NY3d 796; see generally People v Grega, 72 NY2d 489, 495-
496; People v Greaves, 1 AD3d 979, 980). We have thus held that,
where, as here, a defendant contends that he or she has been convicted
upon an uncharged theory of the crime, such a contention does not
require preservation (see People v Gunther, 67 AD3d 1477, 1478; see
also Greaves, 1 AD3d at 980). In any event, were preservation
required, we would nevertheless exercise our discretion to address
defendant’s contention as a matter of discretion in the interest of
justice (see CPL 470.15 [6] [a]).

     A conviction is supported by legally sufficient evidence “when,
viewing the facts in [the] light most favorable to the People, ‘there
is a valid line of reasoning and permissible inferences from which a
rational jury could have found the elements of the crime proved beyond
a reasonable doubt’ ” (People v Danielson, 9 NY3d 342, 349; see People
v Bleakley, 69 NY2d 490, 495). Here, because the People specifically
narrowed the type of sexual contact alleged in counts two, three and
nine of the indictment, County Court was “obliged to hold the
prosecution to this narrower theory alone” (People v Barnes, 50 NY2d
375, 379 n 3; see People v Smith, 161 AD2d 1160, 1161, lv denied 76
NY2d 865). We agree with defendant that the People failed to present
evidence concerning the specific type of sexual contact alleged in
those counts of the indictment.

     “Where there is a variance between the proof and the indictment,
and where the proof is directed exclusively to a new theory rather
than the theory charged in the indictment, the proof is deemed
insufficient to support the conviction” (Smith, 161 AD2d at 1161; see
e.g. Gunther, 67 AD3d at 1477-1478; People v Jones, 165 AD2d 103, 109-
110, lv denied 77 NY2d 962). Counts two and three of the indictment
alleged hand-to-vagina contact, but the victim testified that the only
part of defendant’s body that came into contact with her vagina was
defendant’s penis. Indeed, when asked specifically if any other part
of defendant’s body came into contact with her vagina during the
incident encompassed by counts two and three, the victim responded,
“No.” Count nine of the indictment alleged penis-to-vagina contact,
but the victim testified that defendant touched her vagina with his
hand during that incident. Again, when asked specifically if any
other part of defendant’s body came into contact with her vagina
during the incident encompassed by count nine, the victim responded,
“No.” We thus conclude that the evidence is legally insufficient to
support the conviction with respect to counts two, three and nine and
that defendant was denied his fundamental and nonwaivable right to be
tried on only those crimes charged in the indictment. We therefore
modify the judgment accordingly.

      Viewing the evidence in light of the elements of the remaining
crimes as charged to the jury (see Danielson, 9 NY3d at 349), we
further conclude that the verdict on the remaining counts is not
against the weight of the evidence (see generally Bleakley, 69 NY2d at
495).
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                                                         KA 13-00200

     Defendant contends in his main brief that he was denied a fair
trial because certain spectators were mouthing words and otherwise
gesturing to the victim while she was testifying. When the court
brought the spectators’ conduct to defense counsel’s attention,
defense counsel asked that those spectators be removed from the
courtroom. The court denied that request but indicated that, if such
conduct continued, the offending spectators would be removed. “[T]he
decision to exclude a spectator from the courtroom rests in the
discretion of the trial court” (People v Stearns, 72 AD3d 1214, 1218,
lv denied 15 NY3d 778; see generally People v Kin Kan, 78 NY2d 54, 57-
58, rearg denied 78 NY2d 1008). Ultimately, the question is whether
the spectator’s presence could “severely undermine[] the truth seeking
function of the court” (People v Ming Li, 91 NY2d 913, 917).
Defendant contends that the only evidence establishing the durational
element of the course of sexual conduct count was elicited during the
victim’s first day of testimony, when the alleged interference
occurred. While defendant’s contention is correct, there is nothing
to indicate that any actions by the spectators affected the victim’s
testimony. Indeed, the victim denied seeing any of the spectators’
conduct, and there is nothing to establish that defendant was
otherwise prejudiced by that conduct. We thus conclude that the court
did not abuse its discretion in refusing to exclude the spectators
from the courtroom.

     In his pro se supplemental brief, defendant further contends that
the court erred in failing, sua sponte, to order a mistrial as a
result of the spectators’ conduct and that the court improperly
delegated its authority to control the courtroom to the prosecutor by
allowing the prosecutor to admonish those spectators. We reject those
contentions. “ ‘It is well settled that the decision to declare a
mistrial rests within the sound discretion of the trial court, which
is in the best position to determine if this drastic remedy is truly
necessary to protect the defendant’s right to a fair trial’ ” (People
v Lewis, 247 AD2d 866, 866, lv denied 93 NY2d 1021; see generally
People v Michael, 48 NY2d 1, 9). As noted above, there is nothing in
the record to indicate that defendant was prejudiced by the
spectators’ conduct and, therefore, under these circumstances, we
cannot say that the court abused its discretion in refusing, sua
sponte, to order a mistrial. We further conclude that the court did
not improperly delegate its authority to control the courtroom to the
prosecutor. Indeed, the court, in recognition of its duties under 22
NYCRR 100.1 and 100.3 (B) (2), sua sponte, raised the issue of
spectator interference. At that point, the prosecutor advised the
court that he would admonish the spectators. In permitting the
prosecutor to do so, the court did not improperly delegate a judicial
function (see e.g. People v Daughtry, 242 AD2d 731, 732, lv denied 91
NY2d 871; People v Gulledge, 187 AD2d 1029, 1029, lv denied 81 NY2d
886; cf. People v Bayes, 78 NY2d 546, 551).

     Although defendant contends that certain questions posed to the
child sexual abuse accommodation syndrome expert were improper, he did
not object to that testimony at trial and thus did not preserve his
contention for our review (see People v Spicola, 16 NY3d 441, 465-466,
cert denied ___ US ___, 132 S Ct 400; People v Justice, 99 AD3d 1213,
                                 -4-                          1102
                                                         KA 13-00200

1214-1215, lv denied 20 NY3d 1012). In any event, we see no error in
the challenged portion of the testimony (see generally People v
Keindl, 68 NY2d 410, 422, rearg denied 69 NY2d 823). The expert never
opined that defendant committed the crimes; that the victim was, in
fact, sexually abused; or that the victim’s behavior was consistent
with such abuse (see People v Carroll, 95 NY2d 375, 387; see also
Spicola, 16 NY3d at 465-466).

     Defendant further contends that prosecutorial misconduct on
summation deprived him of a fair trial. With respect to those
instances of prosecutorial misconduct to which defendant objected, the
court sustained the objections and issued curative instructions to the
jury. Inasmuch as “[d]efendant did not request further curative
instructions or move for a mistrial with respect to those
objections[,] . . . the court ‘must be deemed to have corrected the
error[s] to the defendant’s satisfaction’ ” (People v White, 291 AD2d
842, 842-843, lv denied 98 NY2d 656, quoting People v Williams, 46
NY2d 1070, 1071; see People v Robinson, 111 AD3d 1358, 1359, lv
denied 22 NY3d 1141). Defendant failed to raise any objection at
trial to the remainder of the comments he challenges on appeal and,
therefore, defendant’s contention insofar as it concerns those
comments is not preserved for our review (see People v Ortiz-Castro,
12 AD3d 1071, 1071, lv denied 4 NY3d 766). In any event, we conclude
that those comments now challenged by defendant were a fair response
to defense counsel’s summation (see People v Cotto, 106 AD3d 1534,
1534; People v Williams, 98 AD3d 1279, 1280, lv denied 20 NY3d 1066).

     Contrary to defendant’s remaining contentions in the main brief
and in the pro se supplemental brief, we conclude that defendant
received meaningful representation (see generally People v Baldi, 54
NY2d 137, 147), and that the sentence is not unduly harsh or severe.




Entered:   January 2, 2015                      Frances E. Cafarell
                                                Clerk of the Court
