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

202
KA 14-00920
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, SCONIERS, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

LUIS A. PABON, DEFENDANT-APPELLANT.


EASTON THOMPSON KASPEREK SHIFFRIN LLP, ROCHESTER (BRIAN SHIFFRIN OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (ROBERT J. SHOEMAKER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Thomas E. Moran, J.), rendered February 24, 2014. The judgment
convicted defendant, after a nonjury trial, of course of sexual
conduct against a child in the first degree.

     It is hereby ORDERED that the judgment so appealed from is
affirmed.

     Memorandum: On appeal from a judgment convicting him upon a
nonjury verdict of course of sexual conduct against a child in the
first degree (Penal Law § 130.75 [1] [a]), defendant contends that
Supreme Court erred in refusing to dismiss the indictment as time-
barred. We reject that contention. Contrary to defendant’s
contention, the court properly applied CPL 30.10 (3) (f), which, as
relevant here, tolls the statute of limitations for sexual offenses
committed against a minor until the age of 18 (see People v Quinto, 18
NY3d 409, 413).

     Contrary to the further contention of defendant, viewing the
evidence in light of the elements of the crime in this nonjury trial
(see People v Danielson, 9 NY3d 342, 349), we conclude that the
verdict is not against the weight of the evidence (see generally
People v Bleakley, 69 NY2d 490, 495). “ ‘In a bench trial, no less
than a jury trial, the resolution of credibility issues by the trier
of fact and its determination of the weight to be accorded the
evidence presented are entitled to great deference’ ” (People v McCoy,
100 AD3d 1422, 1422), and we see no reason to disturb the court’s
credibility determinations.

     We agree with defendant that the court erred in permitting a
detective to testify that defendant lied to the detective during his
interview (see People v Kozlowski, 11 NY3d 223, 240, rearg denied 11
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                                                         KA 14-00920

NY3d 904, cert denied 556 US 1282; People v Jennings, 33 AD3d 378,
379, lv denied 7 NY3d 926). We conclude, however, that “any error
with respect to the admission of that testimony is harmless because,
in a nonjury trial, the court is presumed to be capable of
disregarding any improper or unduly prejudicial aspect of the
evidence” (People v Wise, 46 AD3d 1397, 1399, lv denied 10 NY3d 872;
see People v Lomaglio, 124 AD3d 1414, 1416; People v Wegman, 2 AD3d
1333, 1334-1335, lv denied 2 NY3d 747). Indeed, the court made it
clear that it was not accepting the detective’s opinion as to
defendant’s veracity (see generally People v Tong Khuu, 293 AD2d 424,
425, lv denied 98 NY2d 714).

     We reject the further contention of defendant that the court
erred in precluding him from introducing into evidence a voicemail
message he allegedly received from the victim’s mother in 1999. It is
well established that a party “cannot introduce extrinsic documentary
evidence or call other witnesses to contradict a witness’ answers
concerning collateral matters solely for the purpose of impeaching
that witness’ credibility” (People v Pavao, 59 NY2d 282, 288-289; see
People v Alvino, 71 NY2d 233, 247-248). Here, defendant sought to
introduce the message for the purpose of impeaching the victim’s
testimony that her mother moved to Puerto Rico to get away from
defendant, who allegedly was abusing her. Contrary to defendant’s
contention, the mother’s reasons for moving to Puerto Rico and the
state of her relationship with defendant were not material issues in
this case and, therefore, defendant was not entitled to introduce
evidence to impeach the victim’s credibility on that collateral issue
(see People v Salim, 96 AD3d 1484, 1485, lv denied 19 NY3d 1028;
People v Clarkson, 78 AD3d 1573, 1574, lv denied 16 NY3d 829). We
likewise reject defendant’s contention that the court erred in denying
his request for a missing witness charge with respect to the victim’s
mother. It is undisputed that the victim’s mother was in Puerto Rico
at the time of the crime at issue and that she did not learn of the
sexual abuse until shortly before the abuse was reported to the
authorities. Thus, her testimony was not “ ‘material to the trial,’ ”
as required for a missing witness instruction (People v Hall, 18 NY3d
122, 131).

     There is no merit to defendant’s contention that the court’s
refusal to “sequester” certain “evidence,” i.e., the court’s
cellphone, computer and a document that the court was allegedly
viewing during the trial, deprived him of appellate review of his
motion for a mistrial based upon the court’s alleged misconduct (see
generally People v Moreno, 70 NY2d 403, 405-406).

     Finally, we conclude that, contrary to defendant’s contention,
any prosecutorial misconduct on summation did not deprive defendant of
a fair trial in the context of this nonjury trial (see People v
Pruchnicki, 74 AD3d 1820, 1822, lv denied 15 NY3d 855; see also People
v Gupton, 281 AD2d 963, 963, lv denied 96 NY2d 863).

     All concur except DEJOSEPH, J., who dissents and votes to reverse
in the following memorandum: I respectfully dissent because I cannot
agree with the majority’s conclusion that the indictment was not time-
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                                                         KA 14-00920

barred.

     During the time period relevant herein, CPL 30.10 (3) (e)
provided that “[a] prosecution for course of sexual conduct in the
first degree as defined in [Penal Law § 130.75] . . . may be commenced
within five years of the commission of the most recent act of sexual
conduct.” CPL 30.10 (3) (f), on the other hand, provided that, “[f]or
purposes of a prosecution involving a sexual offense as defined in
[Penal Law article 130] committed against a child less than eighteen
years of age, . . . the period of limitation shall not begin to run
until the child has reached the age of eighteen or the offense is
reported to a law enforcement agency or statewide central register of
child abuse and maltreatment, whichever occurs earlier.” The majority
appears to conclude that subdivision (e) established the applicable
statute of limitations for the offense of course of sexual conduct
against a child in the first degree (Penal Law § 130.75), while
subdivision (f) tolled the statute of limitations for all sex offenses
as defined in article 130 committed against minors and, because course
of sexual conduct is an article 130 offense, the subdivision (f)
tolling provision must apply. I disagree.

     In my view, the majority’s interpretation of these two
subdivisions fails to apply any true meaning to subdivision (e) and I
therefore must agree with the defendant that, if CPL 30.10 (3) (f)
were applicable to all article 130 offenses, CPL 30.10 (3) (e) would
be rendered “superfluous and ineffective.” I find no basis to
interpret these statutes any differently, inasmuch as it is well
recognized that general provisions of the CPL (i.e., subdivision [f])
should not override specific provisions of the CPL (i.e., subdivision
[e]) (see e.g. People v Jackson, 87 NY2d 782, 790).

     Furthermore, the majority’s reliance on People v Quinto (18 NY3d
409) is misplaced. Quinto simply addresses the “triggering” event
contemplated by subdivision (f) and does not discuss the interplay of
the two subdivisions at issue here (see id. at 412). Subdivisions (e)
and (f) were enacted as part of the same legislative package in 1996
(L 1996, ch 122, § 1). Subdivision (e) remained the same until 2006
when reference to, inter alia, “course of sexual conduct in the first
degree” was removed from subdivision (e) and CPL 30.10 (2) (a) was
amended to read that a prosecution for “course of sexual conduct
against a child in the first degree as defined in [Penal Law § 130.75]
may be commenced at any time” (L 2006, ch 3, § 2). In my view, if the
Legislature intended the tolling provision of subdivision (f) to apply
to course of sexual conduct against a child in the first degree (Penal
Law § 130.75), it would not have simultaneously enacted subdivision
(e), with its specific requirement of a five-year limitation period.

     In view of the foregoing, I would reverse the judgment and
dismiss the indictment as time barred.


Entered:   March 27, 2015                       Frances E. Cafarell
                                                Clerk of the Court
