Opinion
12-07-2016
The PEOPLE, etc., respondent, v. Derrick ROBERTS, also known as Cypress Roberts, appellant.
Laurette Mulry, Riverhead, N.Y. (Adrienne Wallace of counsel), for appellant. Thomas J. Spota, District Attorney, Riverhead, N.Y. (Guy Arcidiacono of counsel), for respondent.
Laurette Mulry, Riverhead, N.Y. (Adrienne Wallace of counsel), for appellant.
Thomas J. Spota, District Attorney, Riverhead, N.Y. (Guy Arcidiacono of counsel), for respondent.
RUTH C. BALKIN, J.P., LEONARD B. AUSTIN, SANDRA L. SGROI, and COLLEEN D. DUFFY, JJ.
Appeal by the defendant from a judgment of the County Court, Suffolk County (Iliou, J.), rendered December 18, 2013, convicting him of criminal sexual act in the first degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The trial court erred in allowing the detective who interviewed the complainant to testify that, in her opinion, the complainant had "exhibited true signs of somebody at this point who was a victim." Shortly before expressing that opinion, the detective had testified that the complainant was upset and crying throughout the interview. Although expert testimony may be admitted "to explain behavior of a victim that might appear unusual or that jurors may not be expected to understand" (People v. Carroll, 95 N.Y.2d 375, 387, 718 N.Y.S.2d 10, 740 N.E.2d 1084 ; see People v. Nicholson, 26 N.Y.3d 813, 828, 28 N.Y.S.3d 663, 48 N.E.3d 944 ; People v. Spicola, 16 N.Y.3d 441, 465, 922 N.Y.S.2d 846, 947 N.E.2d 620 ; People v. Taylor, 75 N.Y.2d 277, 293, 552 N.Y.S.2d 883, 552 N.E.2d 131 ), the fact that the complainant may have been upset and crying is not behavior that would appear unusual to the average juror (cf. People v. Carroll, 95 N.Y.2d at 387, 718 N.Y.S.2d 10, 740 N.E.2d 1084 ; People v. Taylor, 75 N.Y.2d at 293, 552 N.Y.S.2d 883, 552 N.E.2d 131 ). Nevertheless, the court's curative instruction, issued at the beginning of the following court date, alleviated any prejudice to the defendant (see People v. Oliphant, 117 A.D.3d 1085, 1087, 986 N.Y.S.2d 600 ; People v. Benloss, 60 A.D.3d 686, 687, 874 N.Y.S.2d 558 ; People v. Forte, 4 A.D.3d 123, 124, 771 N.Y.S.2d 342 ).
The defendant's contention that the evidence was legally insufficient to support his conviction is unpreserved for appellate review (see CPL 470.05 [2] ; People v. Hawkins, 11 N.Y.3d 484, 491–492, 872 N.Y.S.2d 395, 900 N.E.2d 946 ) and, in any event, without merit (see People v. Gordon, 23 N.Y.3d 643, 649, 992 N.Y.S.2d 700, 16 N.E.3d 1178 ). Moreover, upon our independent review pursuant to CPL 470.15(5), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).
The defendant's contention that the verdict was repugnant is unpreserved for appellate review (see People v. Alfaro, 66 N.Y.2d 985, 987, 499 N.Y.S.2d 378, 489 N.E.2d 1280 ; People v. Satloff, 56 N.Y.2d 745, 746, 452 N.Y.S.2d 12, 437 N.E.2d 271 ; People v. Stahl, 53 N.Y.2d 1048, 1050, 442 N.Y.S.2d 488, 425 N.E.2d 876 ; People v. May, 138 A.D.3d 1024, 1024–1025, 30 N.Y.S.3d 262 ) and, in any event, without merit (see People v. Muhammad, 17 N.Y.3d 532, 539–540, 935 N.Y.S.2d 526, 959 N.E.2d 463 ).
There is no merit to the defendant's contention that the complainant's "prompt outcry" and evidence related to it should not have been admitted. Evidence that a victim of sexual assault promptly complained about the incident is admissible to corroborate the allegation that an assault took place (see People v. McDaniel, 81 N.Y.2d 10, 16, 595 N.Y.S.2d 364, 611 N.E.2d 265 ; People v. Caban, 126 A.D.3d 808, 808, 6 N.Y.S.3d 73 ). "A complaint is timely for purposes of the prompt outcry exception if made ‘at the first suitable opportunity’ " (People v. McDaniel, 81 N.Y.2d at 17, 595 N.Y.S.2d 364, 611 N.E.2d 265, quoting People v. O'Sullivan, 104 N.Y. 481, 486, 10 N.E. 880, and Jerome Prince, Richardson on Evidence § 292 [10th ed 1973] ). "[P]romptness is a relative concept dependent on the facts—what might qualify as prompt in one case might not in another" (People v. McDaniel, 81 N.Y.2d at 17, 595 N.Y.S.2d 364, 611 N.E.2d 265 ; see People v. Shelton, 1 N.Y.3d 614, 615, 777 N.Y.S.2d 9, 808 N.E.2d 1268 ; People v. Caban, 126 A.D.3d at 808, 6 N.Y.S.3d 73 ). Here, the testimony of the complainant and two of her coworkers established that the complainant's outcry, made when she ran out of the room screaming, inter alia, that she had been raped, was made "at the first suitable opportunity" (People v. McDaniel, 81 N.Y.2d at 17, 595 N.Y.S.2d 364, 611 N.E.2d 265 [internal quotation marks omitted] ), i.e., immediately after the event she alleged had occurred. Thus, the testimony was properly admitted under the prompt outcry exception to the hearsay rule (see People v. McDaniel, 81 N.Y.2d at 16–18, 595 N.Y.S.2d 364, 611 N.E.2d 265 ; People v. Caban, 126 A.D.3d at 808, 6 N.Y.S.3d 73 ). The failure of the complainant's coworkers to refer to the outcry in their respective statements to the police did not render inadmissible the outcry testimony, but rather, presented an issue of fact for the jury to resolve (cf.
People v. Grandsoult, 295 A.D.2d 362, 363, 742 N.Y.S.2d 917 ).
The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).