Opinion
99 KA 20-01206
03-24-2023
The PEOPLE of the State of New York, Respondent, v. Fidencio GONZALEZ, Defendant-Appellant.
KEEM APPEALS, PLLC, SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.
KEEM APPEALS, PLLC, SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.
PRESENT: PERADOTTO, J.P., LINDLEY, BANNISTER, MONTOUR, AND OGDEN, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him following a jury trial of predatory sexual assault against a child ( Penal Law § 130.96 ) and rape in the second degree (§ 130.30 [1]), defendant contends that Supreme Court abused its discretion in permitting the People's expert to testify about child sexual abuse accommodation syndrome (CSAAS). We reject that contention. Expert testimony concerning CSAAS "is admissible to explain the behavior of child sex abuse victims as long as it is general in nature and does not constitute an opinion that a particular alleged victim is credible or that the charged crimes in fact occurred" ( People v. Drake , 138 A.D.3d 1396, 1398, 31 N.Y.S.3d 328 [4th Dept. 2016], lv denied 28 N.Y.3d 929, 40 N.Y.S.3d 357, 63 N.E.3d 77 [2016] ; see People v. Spicola , 16 N.Y.3d 441, 465, 922 N.Y.S.2d 846, 947 N.E.2d 620 [2011], cert denied 565 U.S. 942, 132 S.Ct. 400, 181 L.Ed.2d 257 [2011] ). Here, "[a]lthough some of the testimony discussed behavior similar to that alleged by the [victim] in this case, the expert spoke of such behavior in general terms" and, "[i]n addition, the jury heard the expert testify that she was not aware of the facts of the particular case, did not speak with the [victim or anyone from her family,] and was not rendering an opinion as to whether sexual abuse took place" ( People v. Diaz , 20 N.Y.3d 569, 575-576, 965 N.Y.S.2d 738, 988 N.E.2d 473 [2013] ; see People v. Slaughter , 207 A.D.3d 1185, 1186, 170 N.Y.S.3d 803 [4th Dept. 2022], lv denied 39 N.Y.3d 964, 179 N.Y.S.3d 154, 200 N.E.3d 99 [2022] ; People v. Young , 206 A.D.3d 1631, 1632, 168 N.Y.S.3d 616 [4th Dept. 2022] ). Contrary to defendant's contention, we conclude that "the expert's testimony, grounded in [her] professional knowledge and training, provided relevant information outside the ken of the jurors and was properly admitted" ( People v. Nicholson , 26 N.Y.3d 813, 829, 28 N.Y.S.3d 663, 48 N.E.3d 944 [2016] ).
Defendant further contends that the court committed a fundamental error during jury selection. During voir dire, the prosecutor exercised a peremptory challenge to prospective juror number 13. In response, the court discharged prospective juror number 14, presumably by mistake. Neither the prosecutor nor defense counsel objected, and prospective juror number 13 ended up serving on the jury. Although defendant correctly concedes that his contention is unpreserved for our review, he asserts that the court's handling of the prosecutor's peremptory challenge constitutes a mode of proceedings error that is "immune from normal preservation principles" ( People v. Silva , 24 N.Y.3d 294, 299, 998 N.Y.S.2d 154, 22 N.E.3d 1022 [2014], rearg denied 24 N.Y.3d 1216, 4 N.Y.S.3d 598, 28 N.E.3d 33 [2015] ). We reject that contention. "Not every procedural misstep in a criminal case is a mode of proceedings error," a term that is "reserved for the most fundamental flaws" in a criminal proceeding ( People v. Becoats , 17 N.Y.3d 643, 651, 934 N.Y.S.2d 737, 958 N.E.2d 865 [2011], cert denied 566 U.S. 964, 132 S.Ct. 1970, 182 L.Ed.2d 822 [2012] ), such as shifting the burden of proof from the People to the defense (see People v. Patterson , 39 N.Y.2d 288, 296, 383 N.Y.S.2d 573, 347 N.E.2d 898 [1976], affd 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 [1977] ). In our view, the court's mistaken discharge of prospective juror number 14 instead of number 13 does not rise to the level of a mode of proceedings error, and we decline to exercise our power to address defendant's unpreserved contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a] ), particularly given that defendant has failed to demonstrate how he was prejudiced by the error (see generally People v. Rodriguez , 32 A.D.3d 1203, 1204, 821 N.Y.S.2d 331 [4th Dept. 2006], lv denied 8 N.Y.3d 849, 830 N.Y.S.2d 708, 862 N.E.2d 800 [2007] ).
Contrary to defendant's contention, his sentence is not unduly harsh or severe. We have reviewed defendant's remaining contentions and conclude that none requires reversal or modification of the judgment.