Appeals court vacates child sex performance conviction

A state appeals court has reversed multiple counts of promoting sexual performance by a child because of problems with the grand jury proceedings.

Defendant Raymond Congdon was convicted of eight counts of promoting a sexual performance by a child in Onondaga County Court in January 2022 after a bench trial before Judge Gordon J. Cuffy.

In a decision released Friday, the Appellate Division of state Supreme Court, Fourth Department, reversed the verdict and dismissed the indictment, while allowing the prosecutor to re-present the case to another grand jury.

Congdon’s appellate attorney, J. Scott Porter, argued that the conviction must be reversed because the prosecutor failed to instruct the grand jury that an “affirmative act” is necessary to prove the crime.

The court ruled that viewing computer images of a sexual performance by a child on a computer alone does not constitute promoting a performance, according to the decision.

Although it’s not necessary to instruct a grand jury with the same degree of precision that is required with a trial jury, the Fourth Department ruled that, “under the circumstances of this case that the deficiencies in the prosecutor’s charge impaired the integrity of the grand jury proceeding and gave rise to the possibility of prejudice.”

The panel also found that “the potential for prejudice was increased by the prosecutor’s cross-examination of defendant during the grand jury presentation in a manner that was calculated to unfairly create a distinct implication that (Congdon) was lying,” the court wrote.

Still, the court ruled that “the evidence is legally sufficient to support the conviction.”

And the court rejected the claim that the verdict was against the weight of the evidence.

Regardless of the trial verdict, the grand jury proceedings were nonetheless defective.

“We therefore reverse the judgment, grant that part of defendant’s omnibus motion seeking to dismiss the indictment, and dismiss the indictment without prejudice to the People to re-present any appropriate charges to another grand jury,” the court decided.

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