                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: December 8, 2016                   106810
________________________________

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

ROBERT C. ST. IVES,
                    Appellant.
________________________________


Calendar Date:   October 19, 2016

Before:   Peters, P.J., Garry, Egan Jr., Rose and Mulvey, JJ.

                             __________


     Samuel D. Castellino, Big Flats, for appellant.

      P. David Soares, District Attorney, Albany (Brittany L.
Grome of counsel), for respondent.

                             __________


Peters, P.J.

      Appeal from a judgment of the County Court of Broome County
(Smith, J.), rendered January 29, 2014, upon a verdict convicting
defendant of the crime of predatory sexual assault against a
child.

      Defendant was charged in an eight-count indictment with
various crimes based upon his alleged sexual abuse of multiple
victims. After his first trial ended in a mistrial and several
counts of the indictment were dismissed for reasons not relevant
here, defendant was retried on counts 1, 2, 5 and 7. Counts 1
and 2, each charging defendant with the crime of predatory sexual
assault against a child, stem from allegations that he sexually
abused victim A (born in 1998) and her friend, victim B (born in
1997), between the fall of 2008 and November 2010. Counts 5 and
                              -2-                106810

7 charged defendant with the crimes of rape in the first degree
and criminal sexual act in the first degree based upon conduct
towards a third victim in 1999. County Court denied defendant's
motion to sever counts 1 and 2 from counts 5 and 7. Following a
jury trial, defendant was convicted of predatory sexual assault
against a child pertaining to victim A and acquitted of the
remaining charges. County Court denied defendant's subsequent
motion to set aside the verdict and sentenced him to a prison
term of 15 years to life. He appeals.

      County Court did not abuse its discretion when it denied
defendant's motion for severance. Although counts 5 and 7 were
based upon incidents that occurred several years earlier than the
conduct charged in counts 1 and 2, the charges were statutorily
joinable as offenses "defined by the same or similar statutory
provisions and consequently are the same or similar in law" (CPL
200.20 [2] [c]; see People v Hunt, 39 AD3d 961, 962 [2007], lv
denied 9 NY3d 845 [2007]; People v Nickel, 14 AD3d 869, 870
[2005], lv denied 4 NY3d 834 [2005]). Since the offenses were
properly joined, the decision whether to sever the counts for
separate trials was committed to the sound discretion of the
trial court (see People v Mahboubian, 74 NY2d 174, 183 [1989];
People v Lakatosz, 59 AD3d 813, 815 [2009], lv denied 12 NY3d 917
[2009]). Such discretion was not abused here. The proof
concerning the relevant charges was "separately presented,
uncomplicated and easily distinguishable" (People v Kelly, 270
AD2d 511, 512 [2000], lv denied 95 NY2d 854 [2000]; accord People
v Milford, 118 AD3d 1166, 1168 [2014], lv denied 23 NY3d 1065
[2014]; People v Nickel, 14 AD3d at 870), and County Court gave
appropriate instructions to the jury that distinguished between
the charges pertaining to each victim (see People v Lakatosz, 59
AD3d at 815; People v Hunt, 39 AD3d at 962; People v Monte, 302
AD2d 687, 688 [2003]). Moreover, the fact that the jury found
defendant not guilty of the crimes charged in counts 5 and 7
indicates that it separately considered and evaluated the
evidence as to each victim (see People v Milford, 118 AD3d at
1171; People v Nickel, 14 AD3d at 870; People v Monte, 302 AD2d
at 688; People v Boyea, 222 AD2d 937, 939 [1995], lv denied 88
NY2d 934 [1996]).
                              -3-                106810

      Nor are we persuaded that the verdict is contrary to the
weight of the evidence. Insofar as is relevant here, "[a] person
is guilty of predatory sexual assault against a child when, being
eighteen years old or more, he or she commits the crime of . . .
course of sexual conduct against a child in the first degree
. . . and the victim is less than thirteen years old" (Penal Law
§ 130.96). The crime of course of sexual conduct against a child
in the first degree, in turn, requires proof that, over a period
of time not less than three months, defendant "engage[d] in two
or more acts of sexual conduct, which include[d] at least one act
of sexual intercourse [or] oral sexual conduct . . . with a child
less than thirteen years old" (Penal Law § 130.75 [1] [b]).

      At trial, victim A recounted ongoing sexual abuse
perpetrated against her by defendant beginning in the fall of
2008, when she was 10 years old and first came to live with
defendant and his family, and continuing until she moved out of
the residence in November 2010. She explained that the abuse
initially consisted of groping her buttocks and "front private
part" and quickly progressed to defendant subjecting her to oral
sex and engaging her in sexual intercourse. She testified
further that defendant penetrated her vagina with a pink "dildo"
on more than one occasion, and subsequent forensic testing of
that device revealed victim A to be the major contributor of the
DNA recovered therefrom. Victim A provided numerous and specific
details of the abuse she was subjected to by defendant,
explaining that such abuse primarily occurred on Saturday
mornings when defendant's son and wife were undisputedly out of
the house. Her testimony was also corroborated in part by victim
B, who regularly came to the home to visit with victim A
beginning in the fall of 2009. Victim B testified that, while at
defendant's residence, she witnessed episodes in which defendant
engaged victim A in sexual contact, including oral and vaginal
sex, and claimed that she too was victimized by defendant on
several occasions. Such abuse was ultimately disclosed by victim
B to a school counselor in November 2010. Although victim A
initially denied that defendant had engaged in any sexual contact
with her, she explained that her hesitancy to reveal the abuse
was a product of defendant's threats to send her back to foster
care if she told anyone.
                              -4-                106810

      Defendant testified on his own behalf, denying that any of
the alleged sexual contact had occurred and offering an
explanation for victim A's motivation to fabricate the
allegations against him. Such testimony presented "a classic
credibility issue" for the jury to resolve (People v Cridelle,
112 AD3d 1141, 1143 [2013] [internal quotation marks and
citations omitted]; see People v Brabham, 126 AD3d 1040, 1043
[2015], lv denied 25 NY3d 1160 [2015]; People v Moyer, 75 AD3d
1004, 1006 [2010]) and, by its verdict, the jury plainly elected
to credit victim A's version of the events. On this record, we
find no basis upon which to disturb that assessment. The claimed
inconsistencies within victim A's trial testimony, as well as
between her testimony and the testimony of victim B, her admitted
lack of veracity on prior occasions and her mental health history
were all fully explored during the trial and "neither undermined
her testimony in any meaningful respect nor rendered her
testimony incredible as a matter of law" (People v Brown, 114
AD3d 1017, 1018-1019 [2014] [internal quotation marks, brackets
and citations omitted]; see People v Peart, 141 AD3d 939, 941
[2016]; People v Garcia, 141 AD3d 861, 863 [2016], lv denied 28
NY3d 929 [2016]; People v Fernandez, 106 AD3d 1281, 1285-1286
[2013]; People v Simonetta, 94 AD3d 1242, 1244 [2012], lv denied
19 NY3d 1029 [2012]; People v Littebrant, 55 AD3d 1151, 1155
[2008], lv denied 12 NY3d 818 [2009]). As noted, aspects of
victim A's account were in fact supported by the testimony of
other witnesses, including victim B,1 as well as the DNA evidence
recovered from the device purportedly used during some of the
sexual abuse. Although the sexual assault nurse examiner who
conducted an examination of victim A found no apparent injuries


    1
        While the jury's verdict acquitting defendant of the
course of sexual conduct charge pertaining to victim B reflects
its lack of certainty concerning victim B's testimony that she
was sexually abused by defendant, "the jury was entitled to
credit some of her testimony while discounting other aspects"
(People v Kuykendall, 43 AD3d 493, 495 [2007], lv denied 9 NY3d
1007 [2007]; see People v St. Pierre, 141 AD3d 958, 961 [2016];
People v Beliard, 101 AD3d 1236, 1239 [2012], lv denied 20 NY3d
1096 [2013]; People v Hoppe, 96 AD3d 1157, 1159 [2012], lv denied
19 NY3d 1026 [2012]).
                              -5-                  106810

or signs of sexual abuse, she explained that the lack of such
physical evidence is not uncommon in cases of sexual assault and,
to the extent that defendant presented evidence to the contrary,
this too presented a credibility issue for the jury to resolve
(see People v Farnham, 136 AD3d 1215, 1217 [2016], lv denied 28
NY3d 929 [2016]; People v Brown, 114 AD3d at 1018; People v
Fernandez, 106 AD3d at 1282-1283). Viewing the evidence in a
neutral light and giving due deference to the jury's credibility
assessments, we find the verdict to be in accord with the weight
of the evidence (see People v Adams, 135 AD3d 1154, 1155 [2016],
lv denied 27 NY3d 990 [2016]; People v Simonetta, 94 AD3d at
1244; People v Beauharnois, 64 AD3d 996, 998-999 [2009], lv
denied 13 NY3d 834 [2009]).

      Finally, we find no merit to defendant's claim that his
sentence, which is well within the permissible statutory range
(see Penal Law §§ 70.00 [2] [a]; [3] [a] [ii]; 70.80 [3];
130.96), was harsh or excessive. Given the protracted and
deplorable nature of defendant's crimes against victim A, his
exploitation of the position of trust that he held over this
young child and his failure to accept responsibility or express
remorse for his actions, we find no abuse of discretion or
extraordinary circumstances warranting a reduction of the
sentence in the interest of justice (see People v Thornton, 141
AD3d 936, 939 [2016]; People v Adams, 135 AD3d at 1158; People v
Brown, 128 AD3d 1183, 1189 [2015], lv denied 27 NY3d 993 [2016];
People v Hughes, 114 AD3d 1021, 1025 [2014], lv denied 23 NY3d
1038 [2014]).

     Garry, Egan Jr., Rose and Mulvey, JJ., concur.


     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
