                            State of New York
                     Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered: July 21, 2016                       107257
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                       MEMORANDUM AND ORDER

JEREMY ST. PIERRE,
                    Appellant.
________________________________


Calendar Date:   June 3, 2016

Before:   Peters, P.J., Lahtinen, Egan Jr., Rose and Clark, JJ.

                               __________


      Cynthia Feathers, Glens Falls, for appellant, and appellant
pro se.

      Kathleen B. Hogan, District Attorney, Lake George (Emilee
B. Davenport of counsel), for respondent.

                               __________


Egan Jr., J.

      Appeal from a judgment of the Supreme Court (Lawliss, J.),
rendered November 5, 2014 in Clinton County, convicting defendant
following a nonjury trial of the crimes of predatory sexual
assault against a child, criminal facilitation in the third
degree and endangering the welfare of a child (two counts).

      In February 2014, defendant was indicted and charged with
predatory sexual assault against a child (two counts), criminal
facilitation in the third degree and endangering the welfare of a
child (two counts). The charges stemmed from allegations that,
between the end of July 2010 and the end of October 2010,
defendant sexually abused victim A (born in 1997) and victim B
(born in 1999). During that time period, the two victims, who
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are brothers, resided in defendant's household. Defendant waived
his right to a jury trial and, at the conclusion of the bench
trial that followed, defendant was acquitted of the first count
of predatory sexual assault against a child and otherwise was
convicted as charged. County Court thereafter sentenced
defendant to, among other things, a prison term of 25 years to
life upon defendant's conviction of predatory sexual assault
against a child. This appeal ensued.

      We affirm. Preliminarily, to the extent that defendant
argues that the verdict is not supported by legally sufficient
evidence, this issue is unpreserved for our review. That said,
"our weight of the evidence review necessarily involves an
evaluation of whether all elements of the charged crimes were
proven beyond a reasonable doubt at trial" (People v Wilkerson,
___ AD3d ___, ___, 2016 NY Slip Op 04465, *3 [2016] [internal
quotation marks, brackets and citations omitted]). Insofar as is
relevant here, "[a] person is guilty of predatory sexual assault
against a child when, being [18] years old or more, he or she
commits the crime of . . . criminal sexual act in the first
degree . . . and the victim is less than [13] years old" (Penal
Law § 130.96; see People v Fournier, 137 AD3d 1318, 1319 [2016]).
With respect to the underlying crime, "[a] person is guilty of
criminal sexual act in the first degree when he or she engages in
oral sexual conduct . . . with another person . . . [w]ho is less
than [13] years old and the actor is [18] years old or more"
(Penal Law § 130.50 [4]). Further, "[a] person [is] guilty of
criminal facilitation in the third degree, when believing it is
probable that he [or she] is rendering aid to a person under [16]
years of age who intends to engage in conduct that would
constitute a felony, he [or she], being over [18] years of age,
engages in conduct which provides such person with means or
opportunity for the commission thereof and which in fact aids
such person to commit a felony" (Penal Law § 115.01). As set
forth in the underlying indictment, the crime that defendant
allegedly facilitated was incest in the third degree, which, as
relevant here, required proof of "sexual intercourse, oral sexual
conduct or anal sexual conduct with a person whom [the actor]
knows to be related to him or her . . . [including a] brother or
sister or either the whole or the half blood" (Penal Law
§ 255.25). Finally, "[a] person is guilty of endangering the
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welfare of a child when . . . [h]e or she knowingly acts in a
manner likely to be injurious to the physical, mental or moral
welfare of a child less than [17] years old" (Penal Law § 260.10
[1]).

      Here, victim B testified that, at some point between July
2010 and October 2010, defendant (born in 1975) made victim B
(then 10 years old) perform oral sex on him in the living room of
the residence that they shared. Victim B's testimony on this
point was corroborated by victim A (then 13 years old), who
witnessed this incident and offered a detailed account thereof.
Victim B also testified that defendant subjected him to anal sex
on one occasion during the summer of 2010 and that this incident
took place inside of a family camper that was parked at the
residence that the victims shared with defendant in Clinton
County. Additionally, both victim A and victim B testified that,
during this same time period, defendant compelled victim A to
have anal sex with victim B on more than one occasion and
described defendant's efforts to facilitate these encounters,
which included providing or offering advice on lubricants and
showing victim A "the way it was to be done." Finally, both boys
testified that defendant showed them Internet pornography at
various points during the summer of 2010. According to a State
Police investigator who interviewed defendant following his
arrest, defendant denied having sex with the boys but admitted to
showing them "straight porn" for what defendant apparently
regarded as instructional purposes.

      After assessing the foregoing testimony, County Court found
defendant not guilty of the first count of the indictment
charging him with predatory sexual assault against a child with
respect to the incident in the camper – apparently crediting
certain testimony offered on behalf of defendant that the camper
in question was parked in Vermont at the time that the underlying
incident allegedly occurred in Clinton County – and found
defendant guilty of the remaining charges. Upon appeal,
defendant contends that his conviction is against the weight of
the evidence – primarily arguing that the boys' testimony is
unworthy of belief. We disagree.

     To be sure, both boys have certain developmental delays
                              -4-                107257

and, according to the mother, victim B twice was hospitalized for
attempting to hurt – or expressing a desire to injure – a younger
sibling in 2010 and 2011. Additionally, both boys previously had
been sexually abused by a member of the mother's family – with
the bulk of that abuse directed toward victim A. Although the
boys testified before a grand jury with respect to this family
member's abuse in August 2010 and regularly met with the
Assistant District Attorney (hereinafter ADA) prosecuting that
matter, neither of the boys told the ADA – or the counselors that
they then were seeing – that defendant also had abused them.
Indeed, even after the ADA "became suspicious that there might be
something going on between" victim A and victim B and "tricked
[victim B] into disclosing that his brother had had sex with
him," the boys made no mention of defendant's involvement until
August 2013 when defendant accused them of engaging in sexual
activity with one another. Once so confronted, the boys
initially denied engaging in sex with one another and continued
to insist at trial that they did not have sex with one another
after 2010 – despite physical evidence of recent anal trauma to
victim B and victim B's testimony that he saw a doctor in the
years following defendant's abuse due to ongoing difficulties in
defecating and the presence of blood in his stool. Such
testimony, defendant insists, suggests that the boys were less
than truthful regarding their post-2010 sexual activities with
one another and, therefore, their testimony as to the sexual
abuse perpetrated by defendant necessarily is equally suspect.

      Despite defendant's protestations, the fact remains that
County Court, which had ample opportunity to view the boys'
testimony firsthand and assess their credibility and demeanor,
was well aware of their developmental delays, their prior history
as victims of sexual abuse, their delay in reporting the abuse
perpetrated by defendant and their initial denials of ongoing
sexual activity with one another and chose to credit the boys'
testimony as to four of the five counts charged in the
indictment. Indeed, County Court's careful weighing of the boys'
testimony is evidenced by the fact that County Court chose not to
credit their testimony as to the incident in the camper but
otherwise found such testimony to be worthy of belief. In this
regard, County Court was free to credit portions of the victims'
testimony while rejecting other aspects thereof (cf. People v
                              -5-                107257

Fancher, 116 AD3d 1084, 1087 [2014]). Notably, "the appropriate
standard for evaluating a weight of the evidence argument on
appeal is the same regardless of whether the finder of fact was a
judge or a jury because those who see and hear the witnesses can
assess their credibility and reliability in a manner that is far
superior to that of reviewing judges who must rely on the printed
record" (People v Lane, 7 NY3d 888, 890 [2006] [internal citation
omitted]). Applying that standard to the testimony in this case,
we find the verdict to be in accord with the weight of the
evidence.

      The remaining arguments, including those raised in
defendant's pro se brief, do not warrant extended discussion.
Although defendant claims that he was denied the effective
assistance of counsel due to trial counsel's failure to challenge
the two counts of the indictment charging him with endangering
the welfare of a child as time-barred, we disagree. "Given that
a conviction of some kind after trial was not unlikely in the
face of the children's account of events, counsel had a sound
basis to give [County Court] an opportunity to convict defendant
of a misdemeanor rather than a felony" (People v Ambers, 26 NY3d
313, 320 [2015]). As we are otherwise satisfied that defendant
received meaningful representation, his ineffective assistance of
counsel claim must fail. To the extent that defendant contends
that the verdict was repugnant because he was acquitted on count
one of the indictment but convicted on count two of the
indictment, both of which charged him with predatory sexual
assault against a child, this issue is unpreserved for our review
and, in any event, is lacking in merit. As noted previously,
these two counts involved distinctly separate incidents – one of
alleged anal sexual conduct in the family camper (the count upon
which defendant was acquitted) and the other involving oral
sexual conduct in the living room of the residence that defendant
shared with, among others, victim B (the count upon which
defendant was convicted). Finally, defendant's claims of
prosecutorial misconduct in the form of leading questions and
impermissible bolstering are unpreserved for our review, and his
challenge to the perceived severity of the sentence imposed is
lacking in merit. Accordingly, the judgment of conviction is
affirmed.
                        -6-                  107257

Peters, P.J., Lahtinen, Rose and Clark, JJ., concur.



ORDERED that the judgment is affirmed.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
