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

414
KA 10-02011
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, LINDLEY, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

RICHARD M. WILDRICK, DEFENDANT-APPELLANT.


BRIDGET L. FIELD, BATAVIA, FOR DEFENDANT-APPELLANT.

R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (JEFFREY L. TAYLOR
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Ontario County Court (Craig J.
Doran, J.), rendered July 21, 2009. The judgment convicted defendant,
upon a jury verdict, of sexual abuse in the first degree, sexual abuse
in the second degree and endangering the welfare of a child (two
counts).

     It is hereby ORDERED that the judgment so appealed from is
reversed as a matter of discretion in the interest of justice and on
the law, counts five and eight of the indictment are dismissed, and a
new trial is granted on the remaining counts of the indictment.

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of sexual abuse in the first degree (Penal Law §
130.65 [3]), sexual abuse in the second degree (§ 130.60 [2]), and two
counts of endangering the welfare of a child (§ 260.10 [1]). We agree
with defendant that the two counts of endangering the welfare of a
child of which he was convicted are time-barred inasmuch as the acts
charged therein occurred more than two years prior to the filing of
the indictment (see Penal Law § 260.10; CPL 30.10 [2] [c]; People v
Heil, 70 AD3d 1490). Although defendant failed to preserve that issue
for our review, we nevertheless exercise our power to review it as a
matter of discretion in the interest of justice (see CPL 470.15 [6]
[a]). We therefore dismiss the fifth and eighth counts of the
indictment (see People v Wise, 49 AD3d 1198, 1200, lv denied 10 NY3d
940, 966).

     Contrary to the further contention of defendant, the conviction
of sexual abuse in the first and second degrees is supported by
legally sufficient evidence (see generally People v Bleakley, 69 NY2d
490, 495). In addition, viewing the evidence in light of the elements
of those crimes as charged to the jury (see People v Danielson, 9 NY3d
342, 349), we conclude that the verdict convicting him of those crimes
is not against the weight of the evidence (see generally Bleakley, 69
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NY2d at 495).

     We further agree with defendant, however, that County Court erred
in denying his renewed application for subpoenas duces tecum with
respect to the victims’ school records. Defendant renewed his
pretrial application for the subpoenas duces tecum after the People
elicited testimony at trial from the mother of the victims to the
effect that the victims’ behavior had changed after the crimes took
place. Specifically, the mother testified that the younger victim’s
behavior at school was “[u]p and down, all over the place” until he
reported the sexual abuse two years later. According to the mother,
after the younger victim reported the sexual abuse, it was as though a
“light switch[ed]. Everything got better. He liked school.
Everything changed.” The mother further testified that she
communicated with the victims’ teachers and school counselors “[e]very
single day” during the two-year period at issue. Based on the
mother’s testimony concerning the victims’ behavior at school, we
conclude that the court erred in failing to conduct an in camera
review of the victims’ school records to determine whether disclosure
of at least a portion of those records was appropriate.

     The purpose of a subpoena duces tecum is to “compel the
production of specific documents that are relevant and material to
facts at issue in a pending judicial proceeding. The relevant and
material facts in a criminal trial are those bearing upon ‘the
unreliability of either the criminal charge or of a witness upon whose
testimony it depends’ ” (People v Kozlowski, 11 NY3d 223, 242, rearg
denied 11 NY3d 904, cert denied ___ US ___, 129 S Ct 2775, quoting
People v Gissendanner, 48 NY2d 543, 550). A defendant is not,
however, required to show that the records sought are “ ‘actually’
relevant and exculpatory” (id., quoting Gissendanner, 48 NY2d at 550).
Rather, a defendant need only “proffer a good faith factual predicate
sufficient for a court to draw an inference that specifically
identified materials are reasonably likely to contain information that
has the potential to be both relevant and exculpatory” (id. at 241;
see Gissendanner, 48 NY2d at 550). Here, the school records had the
potential not only to contradict and therefore to impeach the mother’s
testimony, but they also had the potential to reveal information
“relevant and material to the determination of guilt or innocence”
(Gissendanner, 48 NY2d at 548). Indeed, if the mother’s testimony
concerning the alleged change in behavior was not borne out by the
school records, the records would undermine her testimony as well as
the children’s accusations of sexual abuse, thus tending to support
the theory of the defense that the accusations were fabricated. We
thus conclude that defendant “sufficiently established that the
children’s records were material to his defense and that the court
erred in withholding the records from him” (People v Thurston, 209
AD2d 976, 977, lv denied 85 NY2d 915). That error cannot be deemed
harmless inasmuch as the proof of guilt, which consists largely of the
victims’ accusations, is not overwhelming, and it cannot be said that
there is no significant probability that the jury would have acquitted
defendant if not for the error (see generally People v Grant, 7 NY3d
421, 424; People v Crimmins, 36 NY2d 230, 241-242; cf. People v
Morris, 153 AD2d 984, lv denied 75 NY2d 922). We therefore reverse
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                                                         KA 10-02011

the judgment of conviction with respect to the remaining counts of the
indictment of which defendant was convicted, i.e., sexual abuse in the
first and second degrees, and we grant a new trial on those counts
(see Thurston, 209 AD2d at 976-977).

     Although we are granting a new trial on other grounds and thus
need not address defendant’s contention that reversal is required
based on prosecutorial misconduct on summation, we nevertheless
express our disapproval of several of the prosecutor’s comments on
summation, which exceeded the bounds of proper advocacy. For example,
the prosecutor argued that, “in the [d]efendant’s mind, he hadn’t hurt
the [victims]. He has given them a gift. He has given them the gift
of his sexual encounter with them. He doesn’t think that he has hurt
these kids by touching them in their genital area when they are
underage and forcing his hands upon them or making [one of the
victims] touch him as well. He doesn’t think he has hurt these kids
because he has given them a gift.” There is no basis in the record
for such comments by the prosecutor, who thereby improperly inflamed
the jury with those unsubstantiated comments (see generally People v
Ashwal, 39 NY2d 105, 110; People v Collins, 12 AD3d 33, 39-40).
Similarly, the prosecutor stated on summation that the older victim
withheld certain details about the sexual abuse because the victim was
“worried that the people are going to think that he might be gay,” and
in later repeating that statement, the prosecutor commented that “[i]t
was awkward and embarrassing for [the older victim] to think, as
mentioned, that people would think that [he] was gay because the
[d]efendant made [him] touch him.” Again, there is no basis in the
record to support those comments (see Ashwal, 39 NY2d at 109-110;
Collins, 12 AD3d at 39-40; People v Clark, 195 AD2d 988, 990). We
thus take this opportunity to admonish the People that “summation is
not an unbridled debate in which the restraints imposed at trial are
cast aside so that counsel may employ all the rhetorical devices at
his [or her] command. There are certain well-defined limits . . . .
Above all [a prosecutor] should not seek to lead the jury away from
the issues by drawing irrelevant and inflammatory conclusions which
have a decided tendency to prejudice the jury against the defendant”
(Ashwal, 39 NY2d at 109-110).

     In light of our determination, we do not address defendant’s
remaining contentions.

     All concur except SMITH, J.P., who dissents in part and votes to
modify in accordance with the following Memorandum: I respectfully
dissent in part. I agree with the majority that counts five and
eight, charging defendant with endangering the welfare of a child
(Penal Law § 260.10 [1]), are time-barred and therefore must be
dismissed. I respectfully disagree with the majority’s further
conclusion, however, that County Court erred in denying defendant’s
renewed application for subpoenas duces tecum with respect to the
victims’ school records, and I therefore vote to modify by affirming
the remainder of the judgment.

     Prior to trial, defendant sought the issuance of subpoenas duces
tecum to enable him to obtain the victims’ school records. The court
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                                                         KA 10-02011

denied that pretrial application on the ground that defendant failed
to make the requisite factual showing that it was reasonably likely
that the records would contain information bearing upon the victims’
credibility. When defendant renewed that application during trial,
after the victims’ mother testified, I conclude that the court
properly denied his renewed application on the same ground.

     “The proper purpose of a subpoena duces tecum, of course, is to
compel the production of specific documents that are relevant and
material to facts at issue in a pending judicial proceeding. The
relevant and material facts in a criminal trial are those bearing upon
‘the unreliability of either the criminal charge or of a witness upon
whose testimony it depends’ ” (People v Kozlowski, 11 NY3d 223, 242,
rearg denied 11 NY3d 904, cert denied ___ US ___, 129 S Ct 2775).
Here, the mother of the victims testified that the behavior of the
victims changed after they were sexually abused, and that those
changes encompassed certain behavior at school. Defendant sought
access to the victims’ school records, indicating that the records
might contain information establishing that the testimony of the
victims and their mother was not credible. In support of his
application, however, defendant proffered absolutely no factual
information establishing that the victims’ school records contained
any information regarding the purported changes in the victims’
behavior. Thus, defense counsel “made no pretense but that the
records’ contents would not directly bear on the hard issue of guilt
or innocence; he cited no possible line of inquiry in which they might
be employed beyond that of general credibility impeachment. Even on
that score, no basis was presented, in the form of information from
any extraneous source or otherwise, to suggest that [the school
records of the victims contained evidence of an] act on which one
could premise an inference that impeachable material tending to affect
[the] credibility [of the victims and their mother] was to be found in
their files. In short, nothing better than conjecture having been
presented to the court, it acted well within its range of discretion
in rejecting the application” (People v Gissendanner, 48 NY2d 543,
550). Indeed, “the simple answer to this contention is that there
emerged not the slightest inkling that the [victims’ school] records
contained any exculpatory material” (id. at 551).




Entered:   April 1, 2011                        Patricia L. Morgan
                                                Clerk of the Court
