This opinion is uncorrected and subject to revision before

publication in the New York Reports.

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No. 156 

The People &c., 

 Respondent,

 v.

Luis A. Pabon, 

 Appellant.

Brian Shiffrin, for appellant.

Robert J. Shoemaker, for respondent.

RIVERA, J.:

Defendant Luis A. Pabon challenges his conviction upon

a nonjury verdict on the grounds that his prosecution is

untimely, the judge was exposed to inadmissible opinion testimony

prejudicial to the defense, and the judge erroneously refused to

sequester items essential to defendant's claims of judicial

misconduct. Contrary to defendant's argument, the tolling

provision of CPL 30.10 (3)(f) applies to his crime and as a

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result the indictment is not time-barred. Defendant's other

claims present no basis to overturn his conviction, or otherwise

disturb the decision below. 

Defendant was indicted on one count of course of sexual

conduct in the first degree (Penal Law § 130.75 [1][a]) for acts

committed between 1998 and 1999 when he sexually assaulted AM,

the seven-year-old daughter of defendant's former lover. 

Defendant was charged after AM disclosed the abuse to the police

in 2012, when she was 21 years old.

Before trial, defendant moved to dismiss the indictment

as time-barred. Supreme Court denied the motion, rejecting

defendant's argument that CPL 30.10 (3)(f) did not toll the

limitations period because such a reading would render the five

year limitations period in CPL 30.10 (3)(e) superfluous.

At defendant's nonjury trial, an investigating officer

testified that he believed defendant lied to him when defendant

denied the allegations during a post-arrest interview. Defense

counsel objected, asserting that the investigator could not

testify as to defendant's veracity because that was a matter to

be determined solely by the court. The judge overruled the

objection stating he was listening to the testimony and "not

taking [the investigator's] judgment."

Defense counsel also moved for a mistrial twice, based

on what counsel argued was inappropriate behavior by the judge

"sitting as the sole juror in the case." Specifically, counsel

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objected to what he assumed was the judge's reading of a document

not in evidence while the investigator testified and to the

judge's note-taking and alleged operation of a cell phone and a

computer during the trial. The court denied the mistrial

motions, as well as counsel's request that the judge sequester

his cell phone, computer, notes, and the document.

The Appellate Division affirmed the conviction, with

one justice dissenting (126 AD3d 1447 [4th Dept 2015]). As

relevant here, the court held that the indictment was not timebarred because CPL 30.10 (3)(f) tolled the statute of limitations

for defendant's crime until the victim attained the age of 18. 

The court further concluded that admission of the investigator's

opinion testimony was harmless error because "in a nonjury trial,

the court is presumed to be capable of disregarding any improper

or unduly prejudicial aspect of the evidence" (id. at 1448). The

court also summarily rejected defendant's claim that he was

denied appellate review by the judge's refusal to sequester the

named items (id. at 1449).

The dissent would have reversed and dismissed the

indictment as time-barred, concluding that application of CPL

30.10 (3)(f) to toll the five-year limitations period of CPL

30.10 (3)(e) would render the latter superfluous and ineffective

(id. at 1450). The dissenting justice granted defendant leave to

appeal (25 NY3d 1174 [DeJoseph, J., dissenting]).

Defendant claims his prosecution is time-barred because

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the applicable five-year limitations period set forth in CPL

former 30.10 (3)(e) expired before the filing of the felony

complaint, and the statute of limitations is not subject to

tolling under CPL 30.10 (3)(f). Defendant's argument is

unpersuasive, misconstrues the statutory provisions, and ignores

the relevant legislative history. The crime for which defendant

stands convicted is expressly encompassed by CPL 30.10 (3)(f),

and involves the type of conduct the legislature sought to

address by expansive, albeit delayed, prosecution of multiple

acts of sexual abuse against a minor. 

It is well established that since "the clearest

indicator of legislative intent is the statutory language, the

starting point in any case of interpretation must always be the

language itself, giving effect to the plain meaning thereof"

(People v Golo, 26 NY3d 358, 361 [2015], citing Majewski v

Broadalbin-Perth Cent. Sch. Dist., 91 NY2d 577, 583 [1998]). 

"[W]hen the statutory language is clear and unambiguous, it

should be construed so as to give effect to the plain meaning of

the words used" (People v Jones, 26 NY3d 730, 733 [2016]). 

Further, "[a]ll parts of a statute must be harmonized with each

other as well as with the general intent of the whole statute,

and effect and meaning must, if possible, be given to the entire

statute and every part and word thereof" (McKinney's Cons Laws of

NY, Book 1, Statutes, § 98).

In 1996, the legislature enacted Penal Law § 130.75

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creating the crime for which defendant was convicted, course of

sexual conduct against a child in the first degree (L 1996, ch

122, § 6). At the same time the legislature added subsections

CPL 30.10 (3)(e) and (f). Subsection 30.10 (3)(e) provided, in

relevant part, that,

"A prosecution for course of sexual conduct

in the first degree as defined in section

130.75 of the penal law . . . may be

commenced within five years of the commission

of the most recent act of sexual conduct."

Subsection 30.10 (3)(f) tolls the limitations period in a

prosecution of a sex offense against a minor, and mandates,

"[f]or purposes of a prosecution involving a

sexual offense as defined in article one

hundred thirty of the penal law committed

against a child less than eighteen years of

age . . . the period of limitation shall not

begin to run until the child has reached the

age of eighteen or the offense is reported to

a law enforcement agency or statewide central

register of child abuse and maltreatment,

whichever occurs earlier."

In 2006, the legislature eliminated the statute of limitations in

CPL 30.10 (3)(e) for course of sexual conduct against a child in

the first degree, and in its place, by amendment to CPL 30.10

(2)(a), provided that prosecution of this crime "may be commenced

at any time" (CPL 30.10, as amended by L 2006, ch 3). The

legislature intended that the change apply retroactively to

offenses whose respective statutes of limitations had not expired

by the effective date of the amendment (2006 McKinney's Session

Laws of NY, ch 3, § 5 [June 2006]; see generally Stogner v

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California, 549 US 607 [2003]). 

By its plain language, and under prescribed

circumstances not challenged on this appeal, CPL 30.10 (3)(f)

tolls the period of limitations applicable to course of sexual

conduct against a child in the first degree, as defined in Penal

Law § 130.75 (1)(a). Defendant does not challenge the clarity of

the text or this direct line of analysis. Instead, defendant

claims that the application of this interpretation presents a

statutory conflict. As defendant sees it, because the tolling

provision in CPL 30.10 (3)(f) applies to the general five-year

statute of limitations in CPL 30.10 (2)(b), which governs all

non-class-A felonies including, by definition, defendant's crime,

and since his crime is a continuing crime, meaning the

limitations period would have commenced with the last act

committed, there is no circumstance under which the specific

limitations period in CPL 30.10 (3)(e) controls, rather than the

period in CPL 30.10 (2)(b). In that case, CPL 30.10 (e) serves

no purpose and is mere statutory surplus. Defendant argues this

result is in contravention of the rules of statutory

interpretation which require both that a statute be construed to

give meaning to all its words and that, where a conflict arises

between parts of a statute, the specific overrides the general. 

To avoid this result, defendant claims that the tolling provision

in subdivision (f) should not apply to the statute of limitations

in subdivision (e).

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Defendant's proposed construction can neither be

squared with the text, legislative purpose, and history of the

relevant statutory provisions, nor can he find support in logic

and reason. Unlike CPL 30.10 (3)(e), which is a self-contained

statute of limitations, CPL 30.10 (3)(f) is a tolling provision

and as such is dependent on reference to time limits found

elsewhere in the statute. Defendant mistakenly equates the two

subsections -- as if they are both statutes of limitations --

when he claims they are in conflict and the specific provision of

CPL 30.10 (3)(e) overrides the general provision of CPL 30.10

(3)(f). The more apt comparison is to the two statutes of

limitations CPL 30.10 (3)(e) and 30.10 (2)(b), which harmoniously

coexist as a specific and general statute of limitations,

respectively, and which in no way lead to the conclusion promoted

by defendant, that CPL 30.10 (3)(e) is superfluous. Regardless,

there is no conflict obvious from the interplay of subsections

(3)(e) and (3)(f). One sets forth a five-year prosecution

deadline and the other explains when the clock begins to run on

that deadline. 

Apart from this text-based analysis, our interpretation

of these subsections is also consistent with the purpose of the

1996 legislation and the 2006 amendment. The legislature created

the crime of course of sexual conduct against a child (Penal Law

§ 130.75) in order to address the difficulty in prosecuting

multiple sexual offenses committed against a child over an

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extended period of time. Under this Court's 1986 decision in

People v Keindl (68 NY2d 410 [1986]), in order to provide

sufficient notice to the defendant as to the crimes charged,

prosecutors needed to charge each instance of sexual assault

separately, and with specificity as to the intervals of the past

events (see People v Morris, 61 NY2d 290 [1984]; People v Watt,

84 NY2d 948 [1994]). Based on the reality that child victims are

less capable of providing specific detail as to the dates and

times of each sexual assault committed over an extended period

time, claims of continued abuse went unprosecuted because child

victims often could not remember the dates when the sexual

assaults had occurred or how many times they were assaulted in

that same period of time. In 1996, the legislature voted to

remove this impediment to the prosecution of those who commit

repeated sex crimes against minors during a period of time in

excess of three months. The 1996 amendment, which created the

crime of course of sexual conduct against a child and the fiveyear statute of limitations set forth in CPL 30.10 (3)(e),

rendered repeated sexual assaults "continuing crimes," which "can

be prosecuted and proven regardless of whether child-victims can

specify the particular dates and times of the individual acts of

sexual conduct" (Governor's Program Bill #39R 1996 Memorandum). 

Simply put, CPL 30.10 (3)(e) was intended to address the

obstacles to prosecution by recognizing that a series of multiple

sexual assaults of a child over an extended period of time is,

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indeed, a continuous crime. 

The legislature also sought to address additional

barriers to prosecution by tolling the statutes of limitations. 

As this Court has explained, at the time CPL 30.10 (3)(e) and (f)

were enacted,

"there was a widespread recognition that the

strictures of the limitations periods

pertaining to sex offenses against children

presented unique difficulties because many

child victims are hesitant or fearful of

disclosing such crimes, especially when the

sexual abuse is committed by a family member

or an individual in the child's household. 

In response to these concerns, new laws

adding tolling provisions to the statutes of

limitations for sexual offenses against

children were enacted in 1996 as part of a

'major step' toward 'ensur[ing] that the law

provides the highest level of protection

possible to these most vulnerable victims'"

(People v Quinto, 18 NY3D 409, 412 [2012]

quoting Letter from President of Borough of

Queens, June 5, 1996, Bill Jacket, L 1996, ch

122, at 22 and Letter from Mayor of City of

NY, June 5, 1996, Bill Jacket, L 1996, ch

122, at 28).

As a consequence, "CPL 30.10 (3)(f) was a major component of the

legislative package" (Quinto, 18 NY3d at 413). This legislative

goal of,

"[d]elaying the commencement of the relevant

limitations period until the age of maturity

was intended to 'increase the likelihood that

young adults, recently freed from a position

of dependency, will disclose the offenses

committed against them in order to seek

redress through the criminal justice system'

and that this would 'also improve

opportunities for preventing recurrences of

the conduct by the perpetrator'" (id. at 413,

quoting Letter from Council on Children and

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Families, June 17, 1996, Bill Jacket, L 1996,

ch 122, at 18).

The language and history of the subsequent 2006

amendments to CPL 30.10 (3)(e) and (f) further illustrate that

the legislature could not have intended defendant's

interpretation. The 2006 amendment eliminated the limitations

period for course of sexual conduct against a child in the first

degree from CPL 30.10 (3)(e), and included it in CPL 30.10 (2)(a)

(CPL 30.10, as amended by L 2006, ch 320). Subsection 30.10(3)(f)

was also amended to toll the period of limitations for sexual

offenses defined in article 130, "other than sexual offenses

delineated in" CPL 30.10 (2)(a) (id. [emphasis added]). These

changes to the statutory scheme explicitly excluded course of

sexual conduct against a child in the first degree from CPL 30.10

(3)(f), meaning that the legislature must have understood CPL

30.10 (3)(f) to have applied to this crime prior to the

amendment. In other words, the legislature would not have

excluded a crime from CPL 30.10 (3)(f) unless it believed that

crime was previously within its ambit.*

The plain language of CPL 30.10 (3)(e) and (f), the

natural interplay between these provisions, and the legislative

history of the 1996 and 2006 amendments provide ample reasons to

* Defendant attempts to obfuscate the obvious, that the

legislature could not make plainer its intent to extend the time

for prosecution of this crime, both by eliminating the statute of

limitations and by intending that the amendment have retroactive

application to the fullest extent permissible under the law.

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reject defendant's proposed interpretation, but there is also the

problem that defendant's construction leads to absurd results. 

We carefully scrutinize this impact of defendant's approach

because courts are "governed by the principal that we must

interpret a statute so as to avoid an unreasonable or absurd

application of the law" (People v Garson, 6 NY3d 604, 614 [2006],

citing People v Santi, 3 NY3d 234, 244 [2004]). Indeed, "courts

have repeatedly rejected statutory constructions that are

unconscionable or antithetical to legislative objectives" (Matter

of New York State Assn. of Criminal Defense Lawyers v Kaye, 96

NY2d 512, 519 [2001]).

Two examples illustrate why the interpretation

defendant advocates is untenable. First, if we applied

defendant's reading to the statute, it would mean that the People

could not prosecute a defendant in the case of a victim sexually

abused from ages three to four who discloses at 16, because the

statute of limitations would have expired when the child turned

nine, rather than 23, the age which would start the limitations

clock running if crimes referenced in CPL 30.10(3)(e) were tolled

under CPL 30.10(3)(f). Certainly the legislature, set on

removing obstacles to prosecutions and recognizing "child victims

are hesitant or fearful of disclosing such crimes" (Quinto, 18

NY3d at 412), could not have intended the statute to foreclose

prosecution in such a case. Second, under defendant's approach

prosecutions of single abuse cases would be tolled, while those

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involving multiple acts against a minor would be barred five

years after the last act. Meaning that, had defendant been

accused of sexually abusing AM just once, he could have been

prosecuted up to and until 2015, but, having been accused of

continued sexual abuse over a three-month period, his prosecution

was entirely foreclosed after 2004. Defendant's interpretation

thereby does less to prevent a recurrence of sexual abuse of

children than to incentivize a child abuser to commit multiple

acts. Such interpretation is "unconscionable or antithetical to

[the] legislative objectives" (Assn. of Criminal Defense Lawyers,

96 NY2d at 519) of "improv[ing] opportunities for preventing

recurrences of the conduct by the perpetrator" (Quinto, 18 NY3d

at 413 [internal citation and quotation marks omitted]). 

In sum, application of CPL 30.10 (3)(f) to crimes

described in CPL 30.10 (3)(e) conforms with the statutory text

and furthers the legislative goal of those statutes by tolling

the limitations period. Therefore, defendant's prosecution is

not time-barred.

Defendant's alternative claim that the trial judge's

admission of irrelevant testimony warrants a new trial is

unpersuasive because the error was harmless. As the Appellate

Division correctly determined, the judge should not have admitted

the investigator's opinion testimony that defendant lied to him

during the interview (see People v Ciaccio, 47 NY2d 431, 439

[1979]["(i)t is always within the sole province of the jury to

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decide whether the testimony of any witness is truthful or

not"]). Instead, the appropriate course would have been for the

judge to sustain defense counsel's objection and preclude or

strike the testimony. Nevertheless, the Appellate Division has

applied a presumption that a court in a nonjury trial will

disregard improper evidence because judges, unlike jurors, are

sufficiently well-versed in the law to understand rules of

evidence and, in the case of a bench trial, may be presumed to

rely only on admissible evidence (see e.g. People v Cobb, 294

AD2d 199, 200 [1st Dept 2002]; People v Livingston, 184 AD2d 529

[2d Dept 1992]; People v Maxam, 161 AD2d 961 [3d Dept 1990];

People v LoMaglio, 124 AD3d 1414 [4th Dept 2015]). In the same

vein, this Court in People v Moreno, (70 NY2d 403, 406 [1987],

quoting People v Brown, 24 NY2d 168, 172 [1969]), has recognized

that a judge, "'by reasons of his learning, experience and

judicial discipline is uniquely capable of distinguishing the

issues and of making an objective determination' based upon

appropriate legal criteria, despite awareness of facts which

cannot properly be relied upon making the decision." Defendant

argues that this presumption does not apply when a judge

erroneously admits evidence because, by admitting it, the judge

has revealed a misunderstanding regarding the evidence's proper

use.

We need not resolve the applicability of the

presumption recognized by the Appellate Division as a general

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matter because the underlying rationale for such a presumption

does not logically extend to this case, where the judge

erroneously allowed inadmissible evidence over proper objection. 

Absent some reliable indication that, notwithstanding the

erroneous ruling, the judge knows that the evidence must be

disregarded, we cannot presume the judge, acting as the finder of

fact, will forego consideration of the evidence during the course

of the trial or in reaching a verdict (cf. People v Smith, 18

NY3d 544, 552 [2012][judge's erroneous admission of evidence

warranted reversal because the judge "clearly relied" on the

evidence and it "led to the conviction"]). Here, the judge's onthe-record statement that he was "not taking [the investigator's]

judgment," provides sufficient assurance that he was not adopting

the investigator's assessment of defendant's honesty. Therefore,

the erroneous admission of the testimony was harmless.

We also reject defendant's remaining claim that the

judge's denial of his mistrial motions and request to sequester

the judge's notes, cell phone, computer, and unidentified

document deprived defendant of proper appellate review. 

Defendant contends that in a bench trial the judge sits as a jury

and is therefore subject to the same limitations as any juror,

meaning the judge may not look at unadmitted documents, take

notes, or use electronic devices during the proceedings. 

Defendant ignores that in a nonjury trial the judge serves in

dual roles, and while sitting as the fact-finder the judge

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continues to be responsible for all the judicial obligations

attendant to overseeing a trial. Thus, a judge may take notes

and rely on technological instruments to facilitate the proper

discharge of these judicial duties. 

To the extent defendant claims the judge misused items

defendant sought to have sequestered or, as his arguments imply,

that the judge was distracted and failed to give proper

consideration to the evidence, his claims are unsupported by the

record. Trial counsel admitted he did not know the nature or

content of the document the judge was holding and, as the record

shows, the judge indicated that although he did not know what

document counsel was referencing, he assured him that he was in

fact listening to the testimony. Additionally, counsel failed to

object at the time of the alleged misuse of the notes and

electronic devices, and based his subsequent mistrial motion on

mere observations of the judge's possession and unspecified

operation of the phone and computer. Under these circumstances,

we perceive no abuse of discretion in the trial judge's denial of

defendant's motions for mistrial and to sequester the named items

(see Harris v Village of E. Hills, 41 NY2d 446, 451 [1977]; see

also People v Rice, 75 NY2d 929, 933 [1990]).

Accordingly, the order of the Appellate Division should

be affirmed.

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People v Luis A. Pabon

No. 156 

PIGOTT, J. (concurring):

I would affirm for reasons stated in the memorandum of

the Appellate Division (126 AD3d 1447).

* * * * * * * * * * * * * * * * *

Order affirmed. Opinion by Judge Rivera. Chief Judge DiFiore

and Judges Abdus-Salaam, Stein and Fahey concur. Judge Pigott

concurs in result in an opinion in which Judge Garcia concurs.

Decided November 1, 2016

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