                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: March 17, 2016                    105527
________________________________

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

MICHAEL J. SCARINGE,
                    Appellant.
________________________________


Calendar Date:   January 6, 2016

Before:   McCarthy, J.P., Garry, Rose and Devine, JJ.

                             __________


     Barry J. Jones, Hudson Falls, for appellant.

      Craig P. Carriero, District Attorney, Malone (Jennifer M.
Hollis of counsel), for respondent.

                             __________


Garry, J.

      Appeal from a judgment of the County Court of Franklin
County (Rogers, J.), rendered August 24, 2012, upon a verdict
convicting defendant of the crimes of rape in the second degree,
sexual abuse in the second degree and endangering the welfare of
a child.

      In the fall of 2009, defendant, who was then 61 years old,
was hired as the director of the Saranac Lake Youth Center, a
community agency that provided an after-school gathering place
for children and teenagers. Shortly thereafter, he befriended a
13-year-old Youth Center client (hereinafter the victim) by,
among other things, buying her gifts and exchanging text messages
with her. He also provided various forms of assistance to her
family. In December 2009, defendant brought the victim to his
                              -2-                105527

home in the Town of Harrietstown, Franklin County, directed her
into his bedroom, removed her clothes, placed and guided her hand
on his penis, and inserted his penis into her vagina. Defendant
was indicted on charges of rape in the second degree, sexual
abuse in the second degree (two counts) and endangering the
welfare of a child. One of the charges of sexual abuse in the
second degree was dismissed before trial. Following a mistrial
and a second jury trial, defendant was convicted of the remaining
charges and sentenced to an aggregate prison term of seven years,
followed by seven years of postrelease supervision. Defendant
appeals.

      County Court did not err in denying defendant's motion to
dismiss the indictment on constitutional and statutory speedy
trial grounds. Whether the People have complied with their
statutory obligation to declare their readiness for a felony
trial within six months of the commencement of a criminal action
is "determined by computing the time elapsed between the filing
of the first accusatory instrument and the People's declaration
of readiness, subtracting any periods of delay that are
excludable under the terms of the statute and then adding to the
result any postreadiness periods of delay that are actually
attributable to the People and are ineligible for an exclusion"
(People v Cortes, 80 NY2d 201, 208 [1992]; accord People v Pope,
96 AD3d 1231, 1232 [2012], lv denied 20 NY3d 1064 [2013]; see CPL
30.30 [1] [a]). Here, the six-month period, comprising 181 days,
began to run when the felony complaint was filed on January 1,
2010 (see People v Cortes, 80 NY2d at 207 n 3; People v Lowman,
103 AD3d 976, 976-977 [2013]). The People declared readiness at
defendant's arraignment on June 23, 2010.1 That date fell less
than 181 days after the felony complaint was filed. We further
agree with the People that they are entitled to exclude an
additional prereadiness period resulting from an adjournment of


    1
        The People had previously declared readiness in a
memorandum filed on June 7, 2010, but did not submit proof that
they served this memorandum upon defense counsel or notified him
of its filing (see People v Kendzia, 64 NY2d 331, 337 [1985]).
Their brief upon appeal does not challenge defendant's contention
that the later date is therefore controlling.
                              -3-                105527

the grand jury proceeding. "[T]he People bear the burden of
establishing their entitlement to exclude any prereadiness delays
from the calculation under a CPL 30.30 motion and, as such, must
ensure that the record is sufficiently clear as to who is
chargeable for a delay" (People v Smith, 110 AD3d 1141, 1142
[2013] [internal quotation marks and citations omitted]; see
People v Seamans, 85 AD3d 1398, 1399 [2011]). Here, the People
submitted correspondence showing that defense counsel and the
District Attorney agreed to a 35-day adjournment of the grand
jury proceeding. This time period is excludable, as defense
counsel's consent was "clearly expressed" (People v Smith, 110
AD3d at 1143 [internal quotation marks and citation omitted]);
however, no such consent was shown as to any other adjournments
(see People v Smith, 82 NY2d 676, 678 [1993]; People v Battaglia,
187 AD2d 808, 810 [1992]).

      The total period of prereadiness delay is thus well under
181 days, and we reject defendant's contention that the People
nevertheless failed to comply with their statutory obligation
because of subsequent postreadiness delay. The People moved for
reconsideration of County Court's prior order dismissing one of
the charges of sexual abuse in the second degree and for
permission to amend the indictment or, alternatively, for leave
to re-present the charges to another grand jury. The court
subsequently issued an order that denied reconsideration but
granted leave to the People to re-present the charges; nine days
later, the People advised the court that they would not do so.
Contrary to defendant's contention, the fact that the People
sought the alternative relief of re-presentment neither renders
their motion equivalent to a request for adjournment nor requires
these time periods to be charged to the People. Delay resulting
from a court's consideration of pretrial motions is not
chargeable to the People (see CPL 30.30 [4] [a]; People v
Moorhead, 61 NY2d 851, 852 [1984]), and a decision by the People
to seek a superseding indictment – or here, their consideration
of whether to do so – does not render illusory a previous
statement of readiness, which "is presumed to be . . . accurate
and truthful" (People v Miller, 113 AD3d 885, 887 [2014]
[internal quotation marks and citation omitted]; see People v
Galloway, 93 AD3d 1069, 1070 [2012], lv denied 19 NY3d 996
[2012]). Accordingly, the People complied with their statutory
                              -4-                105527

speedy trial obligations. Finally, we find no constitutional
violation. The extent of the delay was not "extraordinary"
(People v Romeo, 12 NY3d 51, 56 [2009] [internal quotation marks
and citations omitted], cert denied 558 US 817 [2009]). It
resulted primarily from pretrial motions filed by both parties,
the underlying charges were serious, defendant was not
incarcerated before trial, and he showed no impairment or
prejudice to his defense (see People v Taranovich, 37 NY2d 442,
446-447 [1975]; People v Pitt, 43 AD3d 1248, 1248-1249 [2007], lv
denied 9 NY3d 1008 [2007]).

      Contrary to defendant's claim, County Court properly
refused to suppress statements that defendant made to police
investigators before he invoked his right to counsel. It is the
People's burden to prove that a defendant's statements to police
were voluntary and were not the product of unduly coercive or
deceptive police conduct, an analysis based upon the totality of
the circumstances (see People v Guilford, 21 NY3d 205, 208
[2013]; People v Neal, 133 AD3d 920, 922 [2015], lvs denied 26
NY3d 1110, 1107 [2016]). Here, police investigators asked
defendant to speak with them about an unspecified investigation.
In response to this request, defendant transported himself to the
police station, and the investigators immediately administered
Miranda warnings to him. Defendant confirmed that he understood
his rights and was "absolutely" willing to speak with police.
The investigators did not immediately disclose the true purpose
of the ensuing two-hour interview, but instead discussed various
other topics before asking defendant directly about the victim
and her accusations. Deceptive police conduct may be unduly
coercive, but only when it is so "extreme" that it overbears a
defendant's individual will (People v Thomas, 22 NY3d 629, 642
[2014]). Here, nothing in the investigators' mildly misleading
interviewing technique was so deceitful as to undermine the
voluntariness of defendant's choice whether to speak with them
(see People v Moore, 132 AD3d 496, 496-497 [2015]; People v
Dallas, 119 AD3d 1362, 1363 [2014], lv denied 24 NY3d 1083
[2014]; People v Lloyd, 118 AD3d 1117, 1119 [2014], lv denied 25
NY3d 951 [2015]). Defendant requested an attorney soon after the
investigators began to focus the questioning on the victim's
accusations, belying his contention that the earlier "social
conversation" had so diluted his awareness of his rights that the
                              -5-                105527

warnings should have been re-administered (People v Cox, 21 AD3d
1361, 1363 [2005] [internal quotation marks omitted], lv denied 6
NY3d 753 [2005]; see People v Sanders, 295 AD2d 639, 639 [2002],
lv denied 98 NY2d 771 [2002]).

      Defendant's convictions were not against the weight of the
evidence. The victim testified that she and defendant talked and
spent time together and that he often gave her rides to her home,
school athletic events and cheerleading practice. During these
rides, defendant would sometimes try to kiss the victim or
"massage" her arm. She said that she would "try to block it out"
when he touched her, that it "wasn't comfortable feeling all the
time [and] it was kind of creepy in some ways." She stated,
however, that she thought of defendant as a friend and believed
that she loved him "[b]ecause he would always buy me, like, gifts
and make me feel like really close . . . like he cared for me but
not in a daughter way but like friends."

      Defendant bought several gifts for the victim, such as a
costume for a Halloween dance and Christmas gifts, including
clothing and a stuffed animal.2 He also gave the victim a
prepaid cell phone with minutes already loaded on it, and sent
her an email directing her to use text messaging rather than
email for any "important or private" messages to him. Defendant
later told police that he obtained permission for this gift from
the victim's mother, but the mother denied that she knew about
the phone before the victim came home with it. The victim stated
that she had previously used her mother's cell phone to
communicate with defendant, but had deleted the messages so that
her mother would not find out about them. After defendant gave
her the phone, she used it to communicate with him "[p]retty much
daily," and defendant replenished the phone's minutes when
necessary.



    2
        According to a police investigator, defendant stated that
he selected only the victim to buy Christmas gifts for, even
though there were other young clients who also needed them,
because he could not afford to buy gifts for them all and "had to
choose the child that gives you the most bang for your buck."
                               -6-                105527

      On Wednesday, December 23, 2009, the victim was picked up
at her home by an employee of a local youth advocacy group to
attend a meeting, and she was thereafter transported by this
employee to the Youth Center. The employee testified that she
had intended to drive the victim home afterwards, but the victim
asked if defendant could do so, and defendant "insisted" that he
was traveling in that direction anyway. Accordingly, the
employee obtained the mother's permission for defendant to drive
her home. Defendant later offered a different explanation,
telling police that he drove the victim home because the employee
was unwilling to drive in wintry weather. The victim testified
that after she left with defendant, he stopped at his house to
pick up luggage for a trip that he was about to take. The victim
initially remained in the car, but defendant then asked her to
come inside and go upstairs to get a suitcase. When she did so,
he "nudged" her into his bedroom, removed her clothes and his
own, placed her hand on his penis, got on top of her and had
intercourse with her. She testified that she was "partially okay
with [the encounter]" at first, but that the intercourse was
painful, so she asked defendant to stop. He did not do so.
Afterward, defendant took her home. The victim stated, "I still
felt like we were friends and I liked and, like, loved him." In
the next several days, he and the victim exchanged multiple
affectionate text messages in which they repeatedly stated that
they loved each other, sometimes abbreviated with the acronym
"ILY."

      Several days later, the victim's mother discovered a text
message from defendant on the victim's phone that read in part,
"ILY you a million times, last Sunday was a dream come true and
so was Wednesday before I left."3 The mother confronted the
victim; she denied at first that anything had happened, but upon
further questioning, and being asked whether defendant had raped
her, she answered that he had. The mother then contacted police.
The victim initially told police and a sexual assault nurse
examiner that defendant had forced her to have intercourse with
him, but after additional police questioning, she stated that no


     3
        Defendant had taken the victim shopping to purchase the
cell phone and other gifts on the previous Sunday.
                              -7-                105527

force was used. At trial, she testified that she did not
initially tell the whole truth because she was afraid that she
would get into trouble, believed that it was somehow her fault,
and did not want her mother to think less of her. The People
presented the testimony of a psychologist, qualified as an expert
in the field of child and adolescent sexual abuse, who opined
that children who are subjected to sexual abuse may wish to keep
the abuse secret and find it difficult to talk about. He stated
that partial disclosure of sexual abuse can occur when victims
are confronted before they are psychologically ready to make a
full disclosure, and that a child may have conflicted feelings
about a sexual abuser and want to continue the beneficial aspects
of the relationship despite the abuse.

      The sexual assault nurse examiner testified that she
obtained the victim's medical history, examined her and performed
various tests, but did not try to collect DNA evidence because
too much time had passed. The victim was diagnosed with a
urinary tract infection; the nurse stated that one of the most
common causes of this condition is sexual intercourse. The
pelvic examination revealed contusions and redness that the nurse
described as consistent with the victim's description of the
incident. Asked on cross-examination whether some of these
findings could have been caused by a tampon, she stated this was
possible but "highly unlikely."

      A police investigator with expertise in retrieving data
from cell phones testified that he examined both defendant's
phone and the cell phone that defendant had given to the victim
and initially found no relevant text messages. However, by using
specialized software, the investigator was able to recover about
70 deleted messages between defendant and the victim. In
addition to mutual messages of love, the texts included repeated
requests from the victim not to tell her mother that they were
texting each other. In one message, defendant stated that he
missed the victim and would "jingle" her phone later to let her
know that he loved her. In another, he responded, "me tooooo" to
a message from the victim stating that she loved him. The
investigator also recovered deleted pictures from defendant's
phone, including a photo taken in the Youth Center office,
showing the victim sitting in defendant's lap with their faces
                              -8-                105527

close together. The victim testified that defendant took this
picture when she and defendant were in his office and alone in
the building; defendant had told police that clients did not
enter his office.

      Defendant did not testify, but the police investigators who
interviewed him stated that he acknowledged that he knew the
victim "very well," had occasionally given her rides, had taken
her shopping and had driven her home on December 23, 2009. He
claimed, however, that the victim had remained outside on the
back porch throughout the visit. He further acknowledged that he
and the victim had exchanged text messages, although he claimed
that he never initiated them and merely responded to her. He
admitted that he had told the victim that he loved her, stating
that this "was just terminology that everyone used." Several
witnesses testified on defendant's behalf to call into question
the credibility of the victim and her mother, including one
witness who testified that he asked the victim on social media
whether she "had [defendant] arrested for accusations of rape,"
to which the victim responded that nothing had happened and asked
him to keep it secret, and two witnesses who said that they had
heard the mother state that she could sue defendant and the Youth
Center. The former witness, however, acknowledged on cross-
examination that he had a criminal history that included a
conviction for making a false statement, and the latter witnesses
admitted that they had hostile relationships with the victim and
her mother. Deferring to the jury's credibility assessments and
viewing the evidence in a neutral light, we find that the weight
of the admissible evidence amply supported the verdict (see
People v Romero, 7 NY3d 633, 643-644 [2006]; People v Fisher, 126
AD3d 1048, 1050-1051 [2015]; People v Clevenstine, 68 AD3d 1448,
1450 [2009], lv denied 14 NY3d 799 [2010]).

      However, we agree with defendant that certain Molineux
evidence pertaining to defendant's alleged prior sexual contacts
with young girls should not have been admitted. It is beyond
dispute that evidence of a defendant's prior bad acts may not be
admitted solely to establish his or her bad character or
propensity to commit the charged crime (see People v Agina, 18
NY3d 600, 603 [2012]; People v Arafet, 13 NY3d 460, 464-465
[2009]). When such evidence is relevant to "a proper
                              -9-                105527

nonpropensity purpose, the decision whether to admit [it] . . .
rests upon the trial court's discretionary balancing of probative
value and unfair prejudice" (People v Dorm, 12 NY3d 16, 19
[2009]; see People v Barreto, 64 AD3d 1046, 1049 [2009], lv
denied 13 NY3d 834 [2009]). Here, the People moved before trial
for permission to offer, among other things, the testimony of
four adult female witnesses that defendant had sexual contact
with them during the 1970s when he was employed as their music
teacher and they were between 12 and 14 years old. The People
asserted that defendant had singled out and obtained the trust of
each of these students by such means as complimenting and
flattering them, and had then had sexual contact with them that,
in at least one case, included intercourse. County Court (Main
Jr., J.) issued a pretrial Molineux ruling allowing the People to
use the evidence as part of their case-in-chief. During the
second jury trial, County Court (Rogers, J.) eventually granted
defense counsel's repeated requests to reconsider the earlier
decision and narrowed the prior ruling. The court found that the
testimony was not relevant to the charges of rape in the second
degree or sexual abuse in the second degree, as defendant's
intent to commit these crimes could be inferred from commission
of the acts themselves, but that it was relevant to the mens rea
element of the charge of endangering the welfare of a child. The
court reasoned that defendant's actions in buying gifts for the
victim and exhibiting other kindnesses to her and her family were
noncriminal and could have been intended for purposes other than
gaining the victim's trust and inducing her to engage in sexual
acts with him. The four witnesses were thus permitted to
testify, but the court gave the jury limiting instructions
directing them to consider the evidence only as to the mental
state for the endangering charge, and not to consider it as to
the other two charges or for the purpose of determining whether
defendant had a propensity or predisposition to commit the crime.

      In our view, this ruling was error. For the purposes of
this argument, we assume without deciding that the People are
correct in their contention that they were required to prove the
mental state that defendant had when he committed seemingly
generous acts towards the victim in the lead up to the sexual
assault. However, the requisite analysis balancing the
testimony's probative value against its potential for prejudice
                              -10-               105527

does not appear on the record. Such an analysis may be implied
where, as here, a court limits the admission of the evidence
based upon a record that includes defense counsel's vigorous
opposition to a Molineux application (see People v Milot, 305
AD2d 729, 731 [2003], lv denied 100 NY2d 585 [2003]). Even if
such an analysis may be implied here, the probative value of the
testimony for the limited purpose of showing defendant's mental
state in doing kindnesses for the victim was highly limited. The
alleged prior bad acts were extremely remote in time, taking
place decades previously. Further, there were significant
factual differences between the actions that defendant allegedly
took to gain the trust of his earlier alleged victims and those
he used with the victim. By contrast, the prejudicial impact of
the testimony – consisting of descriptions of multiple
reprehensible acts allegedly committed by defendant against
vulnerable children – was significant. As such, and despite the
limiting instructions with which County Court attempted to
minimize the resulting prejudice, we find that the prejudicial
impact of the proof so outweighed its limited probative value
that it should not have been admitted (see People v Brown, 114
AD3d 1017, 1020 [2014]; People v Buskey, 45 AD3d 1170, 1174
[2007]).

      Nonetheless, we do not find that reversal is required. The
admissible proof of defendant's guilt is overwhelming, and "there
is no view of the evidence which would suggest a significant
probability that defendant would have been acquitted but for the
wrongful admission of this evidence" (People v Newkirk, 75 AD3d
853, 857 [2010] [internal quotation marks and citation omitted],
lv denied 16 NY3d 834 [2011]; see People v Crimmins, 36 NY2d 230,
242 [1975]). Defendant challenged the victim's credibility based
primarily upon her admission that, when first confronted, she
claimed that defendant had forcibly raped her. However, although
the victim later acknowledged that this part of her initial
account was false, the People offered explanatory expert
testimony, and the victim never withdrew her underlying claim
that defendant had sexual contact and intercourse with her. The
victim's testimony was corroborated by physical evidence that she
sustained injuries consistent with sexual intercourse and, most
significantly, by the multiple text messages introduced into
evidence in which defendant, among many other things, described
                              -11-               105527

the day on which the victim claimed that they had sexual
intercourse as "a dream come true." This evidence and the other
proof – in particular, the evidence that defendant singled out
the victim to receive his attentions and gifts, kept his
communications with her secret from the mother, gave her a cell
phone, kept it replenished with minutes, instructed her to use it
for "private" messages, sent her inappropriate messages and
permitted and encouraged her to do the same, and photographed her
sitting on his lap – are consistent with the 13-year-old victim's
account of events and entirely inconsistent with the 61-year-old
defendant's professional responsibilities or with any innocent
explanation. Accordingly, we find that the error is harmless and
no new trial is required (see People v White, 41 AD3d 1036, 1038
[2007], lv denied 9 NY3d 965 [2007]).

      Defendant's remaining claims may be briefly addressed. He
did not receive the ineffective assistance of counsel. Although
defendant's first defense counsel made inappropriate comments
during his opening statement, precipitating a mistrial, he
nevertheless provided vigorous pretrial representation by, among
other things, obtaining dismissal of one of the sexual abuse
charges. Defendant's second defense counsel obtained
adjournments and other relief from County Court to enable her to
prepare for trial, and thereafter made persuasive and cogent
opening and closing statements, vigorously cross-examined the
People's witnesses, made effective objections and obtained the
previously-discussed reconsideration and narrowing of the
Molineux ruling. Her alleged failure to consult or hire an
expert witness on the issue of pediatric sexual abuse is not
evident from the record and, thus, is not properly raised on
direct appeal (see People v Hernandez, 125 AD3d 885, 887 [2015],
lv denied 26 NY3d 968 [2015]; People v Miller, 81 AD3d 854, 855
[2011], lv denied 16 NY3d 861 [2011]). As for defendant's claim
that neither his first nor his second defense counsel obtained
adequate discovery, the record reveals that an open file
discovery procedure was employed (see People v Clarke, 110 AD3d
1341, 1346 [2013], lv denied 22 NY3d 1197 [2014]). Accordingly,
defendant received "meaningful representation" (People v Baldi,
54 NY2d 137, 147 [1981]).

     Finally, we wholly reject defendant's claim that his seven-
                              -12-                 105527

year sentence is harsh and excessive. The record provides no
evidence of vindictiveness or other support for defendant's
assertion that he was penalized for exercising his right to
reject a plea offer and proceed to trial (see People v Pena, 50
NY2d 400, 412 [1980], cert denied 449 US 1087 [1981]; People v
Acevedo, 118 AD3d 1103, 1108 [2014], lv denied 26 NY3d 925
[2015]). In view of the nature of defendant's crimes and his
abuse of a position of authority to induce the 13-year-old victim
to engage in sexual contact with him, we find no abuse of
discretion or extraordinary circumstances warranting any
modification of the sentence (see People v Gibson, 2 AD3d 969,
973-974 [2003], lv denied 1 NY3d 627 [2004]; People v White, 261
AD2d 653, 658 [1999], lv denied 93 NY2d 1029 [1999]).

     McCarthy, J.P., Rose and Devine, JJ., concur.



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
