NY appeals court reverses sexual assault convictions over age evidence

A state appeals court has dismissed two sexual assault convictions because the prosecutor failed to present evidence that the defendant was at least 18 years old.

Defendant Tarkeem L. Jones was convicted in 2021, before Oneida County Court Judge Michael L. Dwyer, of predatory sexual assault against a child, first-degree rape, two counts of first-degree criminal sexual act, and third-degree assault.

In a recently released unanimous decision, the Appellate Division of state Supreme Court, Fourth Department, modified the convictions “as a matter of discretion in the interest of justice and on the law.”

The Fourth Department reversed the predatory sexual assault against a child, and one count of first-degree criminal sexual act convictions, and dismissed those counts.

“We agree with defendant that the evidence is legally insufficient to establish that defendant was 18 years old or more at the time of the crimes,” the court wrote.

The defense failed to preserve the issue for appellate review, but the Fourth Department reviewed the point “as a matter of discretion in the interest of justice,” the court wrote.

Those two counts include an element that required the prosecution to establish that Jones was at least 18 at the time of the crimes. Jones was 33 years old in June 2020.

“The jury naturally had the opportunity to observe his appearance during the trial in 2021, but that opportunity does not, by itself, satisfy the People’s obligation to prove defendant’s age, and there was no evidence at trial bearing on his age,” the court wrote.

The Fourth Department rejected the defense contention, that the verdict was against the weight of the evidence, pertaining to Jones’ identity as the perpetrator.

“We also reject defendant’s contention that he was denied effective assistance of counsel,” the court wrote.

“Contrary to defendant’s contention, the record before us does not establish that defense counsel’s comments during his opening statement improperly shifted the burden of proof onto defendant,” the court wrote.

The court also ruled that Jones was not deprived of effective assistance by his attorney’s failure to call him to testify, or by his attorney’s questioning of a witness.

Those decisions were “a matter of trial strategy and cannot be characterized as ineffective assistance of counsel,” the court found.

Jones’ lawyer also was not ineffective for failing to object to alleged hearsay testimony, the court wrote. Even if the testimony was inadmissible hearsay, the court ruled, “the single error by defense counsel in failing to object to its admission was not so egregious as to deprive defendant of a fair trial.”

“Viewing the evidence, the law, and the circumstances of this case, in totality, and as of the time of the representation, we conclude that defendant received meaningful representation,” the court wrote.

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