                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: May 12, 2016                      106294
________________________________

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

MICHAEL HAGAMAN,
                    Appellant.
________________________________


Calendar Date:   March 25, 2016

Before:   McCarthy, J.P., Garry, Lynch, Devine and Clark, JJ.

                             __________


     Lisa A. Burgess, Indian Lake, for appellant.

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

                             __________


Devine, J.

      Appeal from a judgment of the County Court of Warren County
(Hall Jr., J.), rendered June 25, 2013, upon a verdict convicting
defendant of the crimes of predatory sexual assault against a
child (10 counts) and conspiracy in the second degree.

      Defendant (born in 1984) and Anthony Merrill were charged
in an indictment with various offenses stemming from their
alleged repeated sexual abuse of a victim who was less than two
years of age at the time. The charges against Merrill were
resolved in a plea agreement that required him to cooperate in
the prosecution of defendant. Following a jury trial at which
Merrill testified against him, defendant was convicted of 10
counts of predatory sexual assault against a child and one count
of conspiracy in the second degree. County Court denied
                              -2-                106294

defendant's motion to set aside the verdict and sentenced him to
an aggregate prison term of 100 years to life. Defendant
appeals, and we now affirm.

      Defendant first asserts that the verdict was against the
weight of the evidence. In that regard, defendant was on parole
in 2012 and was obliged to speak to his parole officer and obtain
the officer's approval before contacting acquaintances.1 He
obtained permission from the officer to go to Merrill's residence
after representing that no children would be present. Defendant
altered his story over time, however, and eventually admitted to
the officer that he had been in contact with the victim five
times at Merrill's residence. The officer was concerned enough
by defendant's lies, as well as his evasive and nervous demeanor,
to obtain a parole warrant and take him into custody. The
officer further contacted State Police Investigator William Shea
to look into the situation. Shea interviewed Merrill and
defendant separately, and both gave detailed and largely
consistent statements indicating that the victim had been
subjected to varied forms of sexual abuse on four separate
occasions when defendant visited Merrill's residence. Merrill
testified to the nature of that abuse at trial, stating that
defendant had performed oral sex on the victim, forced his penis
into the victim's mouth, and anally raped the victim in differing
combinations over the course of five incidents. The mother of
the victim testified that she had left defendant and Merrill
alone with the victim on several occasions, and that the victim
was upset and crying when she returned. Defendant then took
steps to cover up the abuse after his parole officer's suspicions


    1
        Defendant's status as a parolee led to the discovery of
his crimes and, as such, evidence regarding that status was
"indisputably necessary to complete the narrative and
inextricably intertwined with the facts of the charged offense so
as to permit the jury to be informed of" it (People v Chestnut,
254 AD2d 525, 526 [1998], lv denied 93 NY2d 871 [1999] [internal
citations omitted]; accord People v Walker, 80 AD3d 793, 795
[2011]). County Court gave appropriate limiting instructions to
the jury that ameliorated any prejudice potentially caused by
that evidence (see People v Walker, 80 AD3d at 795).
                              -3-                106294

had been aroused, seeking out advice on "beating" a polygraph
test and advising Merrill that he "took care of" a digital camera
that was used to record the incidents of abuse. The proof of
defendant's guilt was accordingly compelling and, contrary to his
contentions, this varied proof satisfied the corroboration
requirements of CPL 60.22 (see People v Burgin, 40 NY2d 953, 954
[1976]) and CPL 60.50 (see People v Flemming, 101 AD3d 1483, 1487
[2012], lv denied 21 NY3d 942 [2013]).

      A different verdict arguably would have been reasonable.
There was no physical evidence to verify that the abuse had
occurred, although two physicians testified that such was not
unusual due to the time that had passed before the victim was
first examined. There was also some question as to whether four
or five incidents of abuse had occurred, and the counts submitted
to the jury only dealt with four incidents. Aside from those
inconsistencies, as well as other variations in the accounts
given by Merrill, defendant testified that the statements he made
to Shea were untrue and that he had only made them because he was
"agitated" by the interrogation and "wanted to [wrap it up] to
get ready for dinner." Nevertheless, after "weigh[ing]
conflicting testimony, review[ing] any rational inferences that
may be drawn from the evidence and evaluat[ing] the strength of
such conclusions," and according due deference to the jury's
assessment of credibility, we find that "the jury was justified
in finding the defendant guilty beyond a reasonable doubt"
(People v Danielson, 9 NY3d 342, 348 [2007]; see People v
Fournier, 137 AD3d 1318, 1320 [2016]).

      Defendant next argues that the verdict should have been set
aside due to the People's failure to disclose evidence used to
impeach the credibility of one of his trial witnesses. "The Due
Process Clauses of the Federal and State Constitutions both
guarantee a criminal defendant the right to discover favorable
evidence in the People's possession material to guilt or
punishment," and it follows that the People are obliged to turn
over impeachment evidence that favors the defense in some way
(People v Fuentes, 12 NY3d 259, 263 [2009] [citations omitted];
see Giglio v United States, 405 US 150, 154-155 [1972]; Brady v
Maryland, 373 US 83, 87 [1963]). As noted above, the abuse was
allegedly recorded with a digital camera that defendant "took
                              -4-                106294

care of" afterwards. Defendant called that evidence into
question via the testimony of his mother, who stated that a
digital camera owned by him was in her secure storage unit and
that defendant had not handled the camera on the one occasion
that they visited the unit around the time of the abuse. The
People, in turn, impeached the mother's credibility by cross-
examining her regarding her prior statement to Shea that
defendant had handled the camera while they were at the unit.2
There may well be circumstances where impeachment evidence would
remain material and exculpatory – and thereby warrant disclosure
– even if the People attempted "to avoid [its] disclosure
. . . by not calling the relevant witness to testify" themselves
(United States v Jackson, 345 F3d 59, 71 [2d Cir 2003], certs
denied 540 US 1157 [2004], 541 US 956 [2004]; compare United
States v Williams-Davis, 90 F3d 490, 513 [DC Cir 1996], certs
denied 519 US 1128, 1129 [1997], with United States v Johnson,
581 F3d 320, 331 [6th Cir 2009], cert denied 560 US 966 [2010]).
Inasmuch as the prior statement of defendant's mother was in no
way favorable to his defense, those circumstances are not present
here. Therefore, County Court properly determined that the
People did not run afoul of their obligations under Brady and
Giglio in failing to disclose the prior statement (see People v
Fuentes, 12 NY3d at 263; People v Sheppard, 107 AD3d 1237, 1241
[2013], lv denied 22 NY3d 1203 [2014]).

      Defendant also raises issues regarding the severity of his
sentence by asserting that it was "grossly disproportionate" to
that received by Merrill, but "[t]he fact that defendant's
sentence was greater than that of his codefendant does not
substantiate his claim that he was improperly punished for going
to trial" (People v Elwood, 80 AD3d 988, 990 [2011], lv denied 16
NY3d 858 [2011]; see People v Roberts, 301 AD2d 756, 757 [2003]).
County Court explained the discrepancy at defendant's sentencing,
contrasting the uneventful criminal history of Merrill with


    2
        The People did not turn over the mother's prior statement
before trial, but the effect of that failure is far from clear,
as they advised defense counsel both that the statement existed
and that it contradicted her more recent claim that defendant had
not handled the camera at the storage unit.
                              -5-                  106294

defendant's repeated commission of sex offenses involving young
children. Indeed, after taking into account defendant's prior
criminal history, the heinous acts committed by him here and the
evident danger he poses to children, we are unpersuaded that the
aggregate sentence constituted an abuse of discretion or that
extraordinary circumstances warrant its modification in the
interest of justice (see People v Hughes, 114 AD3d 1021, 1025
[2014], lv denied 23 NY3d 1038 [2014]; People v Alford, 65 AD3d
1392, 1395 [2009], mod on other grounds 14 NY3d 846 [2010]).

      Defendant's remaining arguments, to the extent that they
are properly preserved for our review, have been considered and
found to be lacking in merit.

     McCarthy, J.P., Garry, Lynch and Clark, JJ., concur.



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
