State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: July 21, 2016 107257 

________________________________

THE PEOPLE OF THE STATE OF

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

JEREMY ST. PIERRE,

Appellant.

________________________________

Calendar Date: June 3, 2016

Before: Peters, P.J., Lahtinen, Egan Jr., Rose and Clark, JJ.

__________

Cynthia Feathers, Glens Falls, for appellant, and appellant

pro se.

Kathleen B. Hogan, District Attorney, Lake George (Emilee

B. Davenport of counsel), for respondent.

__________

Egan Jr., J.

Appeal from a judgment of the Supreme Court (Lawliss, J.),

rendered November 5, 2014 in Clinton County, convicting defendant

following a nonjury trial of the crimes of predatory sexual

assault against a child, criminal facilitation in the third

degree and endangering the welfare of a child (two counts).

In February 2014, defendant was indicted and charged with

predatory sexual assault against a child (two counts), criminal

facilitation in the third degree and endangering the welfare of a

child (two counts). The charges stemmed from allegations that,

between the end of July 2010 and the end of October 2010,

defendant sexually abused victim A (born in 1997) and victim B

(born in 1999). During that time period, the two victims, who
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are brothers, resided in defendant's household. Defendant waived

his right to a jury trial and, at the conclusion of the bench

trial that followed, defendant was acquitted of the first count

of predatory sexual assault against a child and otherwise was

convicted as charged. County Court thereafter sentenced

defendant to, among other things, a prison term of 25 years to

life upon defendant's conviction of predatory sexual assault

against a child. This appeal ensued.

We affirm. Preliminarily, to the extent that defendant

argues that the verdict is not supported by legally sufficient

evidence, this issue is unpreserved for our review. That said,

"our weight of the evidence review necessarily involves an

evaluation of whether all elements of the charged crimes were

proven beyond a reasonable doubt at trial" (People v Wilkerson,

___ AD3d ___, ___, 2016 NY Slip Op 04465, *3 [2016] [internal

quotation marks, brackets and citations omitted]). Insofar as is

relevant here, "[a] person is guilty of predatory sexual assault

against a child when, being [18] years old or more, he or she

commits the crime of . . . criminal sexual act in the first

degree . . . and the victim is less than [13] years old" (Penal

Law § 130.96; see People v Fournier, 137 AD3d 1318, 1319 [2016]). 

With respect to the underlying crime, "[a] person is guilty of

criminal sexual act in the first degree when he or she engages in

oral sexual conduct . . . with another person . . . [w]ho is less

than [13] years old and the actor is [18] years old or more"

(Penal Law § 130.50 [4]). Further, "[a] person [is] guilty of

criminal facilitation in the third degree, when believing it is

probable that he [or she] is rendering aid to a person under [16]

years of age who intends to engage in conduct that would

constitute a felony, he [or she], being over [18] years of age, 

engages in conduct which provides such person with means or

opportunity for the commission thereof and which in fact aids

such person to commit a felony" (Penal Law § 115.01). As set

forth in the underlying indictment, the crime that defendant

allegedly facilitated was incest in the third degree, which, as

relevant here, required proof of "sexual intercourse, oral sexual

conduct or anal sexual conduct with a person whom [the actor]

knows to be related to him or her . . . [including a] brother or

sister or either the whole or the half blood" (Penal Law

§ 255.25). Finally, "[a] person is guilty of endangering the
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welfare of a child when . . . [h]e or she knowingly acts in a

manner likely to be injurious to the physical, mental or moral

welfare of a child less than [17] years old" (Penal Law § 260.10

[1]).

Here, victim B testified that, at some point between July

2010 and October 2010, defendant (born in 1975) made victim B

(then 10 years old) perform oral sex on him in the living room of

the residence that they shared. Victim B's testimony on this

point was corroborated by victim A (then 13 years old), who

witnessed this incident and offered a detailed account thereof. 

Victim B also testified that defendant subjected him to anal sex

on one occasion during the summer of 2010 and that this incident

took place inside of a family camper that was parked at the

residence that the victims shared with defendant in Clinton

County. Additionally, both victim A and victim B testified that,

during this same time period, defendant compelled victim A to

have anal sex with victim B on more than one occasion and

described defendant's efforts to facilitate these encounters,

which included providing or offering advice on lubricants and

showing victim A "the way it was to be done." Finally, both boys

testified that defendant showed them Internet pornography at

various points during the summer of 2010. According to a State

Police investigator who interviewed defendant following his

arrest, defendant denied having sex with the boys but admitted to

showing them "straight porn" for what defendant apparently

regarded as instructional purposes.

After assessing the foregoing testimony, County Court found

defendant not guilty of the first count of the indictment

charging him with predatory sexual assault against a child with

respect to the incident in the camper – apparently crediting

certain testimony offered on behalf of defendant that the camper

in question was parked in Vermont at the time that the underlying

incident allegedly occurred in Clinton County – and found

defendant guilty of the remaining charges. Upon appeal,

defendant contends that his conviction is against the weight of

the evidence – primarily arguing that the boys' testimony is

unworthy of belief. We disagree.

To be sure, both boys have certain developmental delays
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and, according to the mother, victim B twice was hospitalized for

attempting to hurt – or expressing a desire to injure – a younger

sibling in 2010 and 2011. Additionally, both boys previously had

been sexually abused by a member of the mother's family – with

the bulk of that abuse directed toward victim A. Although the

boys testified before a grand jury with respect to this family

member's abuse in August 2010 and regularly met with the

Assistant District Attorney (hereinafter ADA) prosecuting that

matter, neither of the boys told the ADA – or the counselors that

they then were seeing – that defendant also had abused them. 

Indeed, even after the ADA "became suspicious that there might be

something going on between" victim A and victim B and "tricked

[victim B] into disclosing that his brother had had sex with

him," the boys made no mention of defendant's involvement until

August 2013 when defendant accused them of engaging in sexual

activity with one another. Once so confronted, the boys

initially denied engaging in sex with one another and continued

to insist at trial that they did not have sex with one another

after 2010 – despite physical evidence of recent anal trauma to

victim B and victim B's testimony that he saw a doctor in the

years following defendant's abuse due to ongoing difficulties in

defecating and the presence of blood in his stool. Such

testimony, defendant insists, suggests that the boys were less

than truthful regarding their post-2010 sexual activities with

one another and, therefore, their testimony as to the sexual

abuse perpetrated by defendant necessarily is equally suspect.

Despite defendant's protestations, the fact remains that

County Court, which had ample opportunity to view the boys'

testimony firsthand and assess their credibility and demeanor,

was well aware of their developmental delays, their prior history

as victims of sexual abuse, their delay in reporting the abuse

perpetrated by defendant and their initial denials of ongoing

sexual activity with one another and chose to credit the boys'

testimony as to four of the five counts charged in the

indictment. Indeed, County Court's careful weighing of the boys'

testimony is evidenced by the fact that County Court chose not to

credit their testimony as to the incident in the camper but

otherwise found such testimony to be worthy of belief. In this

regard, County Court was free to credit portions of the victims'

testimony while rejecting other aspects thereof (cf. People v
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Fancher, 116 AD3d 1084, 1087 [2014]). Notably, "the appropriate

standard for evaluating a weight of the evidence argument on

appeal is the same regardless of whether the finder of fact was a

judge or a jury because those who see and hear the witnesses can

assess their credibility and reliability in a manner that is far

superior to that of reviewing judges who must rely on the printed

record" (People v Lane, 7 NY3d 888, 890 [2006] [internal citation

omitted]). Applying that standard to the testimony in this case,

we find the verdict to be in accord with the weight of the

evidence.

The remaining arguments, including those raised in

defendant's pro se brief, do not warrant extended discussion. 

Although defendant claims that he was denied the effective

assistance of counsel due to trial counsel's failure to challenge

the two counts of the indictment charging him with endangering

the welfare of a child as time-barred, we disagree. "Given that

a conviction of some kind after trial was not unlikely in the

face of the children's account of events, counsel had a sound

basis to give [County Court] an opportunity to convict defendant

of a misdemeanor rather than a felony" (People v Ambers, 26 NY3d

313, 320 [2015]). As we are otherwise satisfied that defendant

received meaningful representation, his ineffective assistance of

counsel claim must fail. To the extent that defendant contends

that the verdict was repugnant because he was acquitted on count

one of the indictment but convicted on count two of the

indictment, both of which charged him with predatory sexual

assault against a child, this issue is unpreserved for our review

and, in any event, is lacking in merit. As noted previously,

these two counts involved distinctly separate incidents – one of

alleged anal sexual conduct in the family camper (the count upon

which defendant was acquitted) and the other involving oral

sexual conduct in the living room of the residence that defendant

shared with, among others, victim B (the count upon which

defendant was convicted). Finally, defendant's claims of

prosecutorial misconduct in the form of leading questions and

impermissible bolstering are unpreserved for our review, and his

challenge to the perceived severity of the sentence imposed is

lacking in merit. Accordingly, the judgment of conviction is

affirmed.
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Peters, P.J., Lahtinen, Rose and Clark, JJ., concur.

ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court