Opinion
97 KA 14–00199
04-26-2019
The PEOPLE of the State of New York, Respondent, v. Alexander LATHROP, Defendant–Appellant.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DAVID R. JUERGENS OF COUNSEL), FOR DEFENDANT–APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL), FOR RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DAVID R. JUERGENS OF COUNSEL), FOR DEFENDANT–APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., PERADOTTO, DEJOSEPH, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDERIt is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, of rape in the third degree ( Penal Law § 130.25[2] ). Defendant contends that he was denied a fair trial because certain portions of the testimony of an expert witness concerning child sexual abuse accommodation syndrome (CSAAS) exceeded permissible bounds of admissible evidence. It is well settled that 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. Diaz, 20 N.Y.3d 569, 575–576, 965 N.Y.S.2d 738, 988 N.E.2d 473 [2013] ; People v. Williams, 20 N.Y.3d 579, 583–584, 964 N.Y.S.2d 483, 987 N.E.2d 260 [2013] ). Contrary to defendant's contention, we conclude that the expert's generalized testimony regarding the prevalence of father-daughter relationships in the child sexual abuse cases that he had worked, which provided further context and support for his explanation of CSAAS that child victims may exhibit secrecy and delayed disclosure behaviors when the perpetrator is an adult family member such as a parent, did not exceed permissible bounds (see Diaz, 20 N.Y.3d at 575–576, 965 N.Y.S.2d 738, 988 N.E.2d 473 ; People v. Spicola, 16 N.Y.3d 441, 458, 466, 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] ; People v. LoMaglio, 124 A.D.3d 1414, 1416, 1 N.Y.S.3d 713 [4th Dept. 2015], lv denied 25 N.Y.3d 1203, 16 N.Y.S.3d 526, 37 N.E.3d 1169 [2015] ).
Defendant failed to preserve for our review his contention that Supreme Court erred in allowing the expert to testify about the frequency with which perpetrators used physical force in the child sexual abuse cases that he had worked (see Spicola, 16 N.Y.3d at 465–466, 922 N.Y.S.2d 846, 947 N.E.2d 620 ; People v. Duell, 124 A.D.3d 1225, 1229, 999 N.Y.S.2d 288 [4th Dept. 2015], lv denied 26 N.Y.3d 967, 18 N.Y.S.3d 603, 40 N.E.3d 581 [2015] ). In any event, that contention lacks merit. The expert explained that it was rare for a perpetrator to use physical force against a child victim because doing so would discourage continued access to the child; instead, a perpetrator might lie to the child to encourage the child to return and a child might not resist because some of the abuse might be "disguised" to the child, e.g., a shoulder rub or massage that is sexually gratifying for the perpetrator but not perceived as abuse by the child, which causes further delay in disclosure. That testimony was admissible inasmuch as it "assisted in explaining victims' subsequent behavior that the factfinder might not understand, such as why victims may accommodate [perpetrators] and why they wait before disclosing the abuse" ( Williams, 20 N.Y.3d at 584, 964 N.Y.S.2d 483, 987 N.E.2d 260 ; see Diaz, 20 N.Y.3d at 575, 965 N.Y.S.2d 738, 988 N.E.2d 473 ; People v. Gopaul, 112 A.D.3d 966, 967, 977 N.Y.S.2d 95 [2d Dept. 2013] ).
Contrary to defendant's contention, our holding in People v. Ruiz, 159 A.D.3d 1375, 73 N.Y.S.3d 308 (4th Dept. 2018) does not require a different result. Consistent with Court of Appeals precedent on this issue, Ruiz stands for the proposition that a court's admission in evidence of expert testimony regarding the behavior of perpetrators constitutes an abuse of discretion where such testimony is not admitted to assist the factfinder in understanding victims' unusual behavior, such as accommodation of perpetrators and delay in disclosure of the abuse, and exceeds permissible bounds by reference to behavior in specific terms that mirrors the abuse that occurred in that particular case ( id. at 1376–1377, 73 N.Y.S.3d 308 ; see Diaz, 20 N.Y.3d at 575–576, 965 N.Y.S.2d 738, 988 N.E.2d 473 ; Williams, 20 N.Y.3d at 584, 964 N.Y.S.2d 483, 987 N.E.2d 260 ). Here, the expert's testimony does not suffer from those deficiencies. "Although 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" ( Diaz, 20 N.Y.3d at 575, 965 N.Y.S.2d 738, 988 N.E.2d 473 ; see LoMaglio, 124 A.D.3d at 1416, 1 N.Y.S.3d 713 ; cf. Ruiz, 159 A.D.3d at 1376–1377, 73 N.Y.S.3d 308 ).Defendant's remaining challenge to the expert's testimony is not preserved for our review (see Spicola, 16 N.Y.3d at 465–466, 922 N.Y.S.2d 846, 947 N.E.2d 620 ; Duell, 124 A.D.3d at 1229, 999 N.Y.S.2d 288 ), and we decline to exercise our power to review that challenge as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).
Contrary to defendant's further contention, the court did not err in permitting a police investigator to testify that she investigated allegations in a Child Protective Services report that the victim had been raped and the suspect was her father. The court properly admitted that evidence inasmuch as " ‘nonspecific testimony about [a] child-victim's reports of sexual abuse [does] not constitute improper bolstering [when] offered for the relevant, nonhearsay purpose of explaining the investigative process and completing the narrative of events leading to the defendant's arrest’ " ( People v. Ludwig, 24 N.Y.3d 221, 231, 997 N.Y.S.2d 351, 21 N.E.3d 1012 [2014] ). Defendant's remaining challenges to the investigator's testimony are not preserved for our review (see CPL 470.05[2] ; People v. Yelle, 303 A.D.2d 1043, 1044, 756 N.Y.S.2d 692 [4th Dept. 2003], lv denied 100 N.Y.2d 626, 767 N.Y.S.2d 410, 799 N.E.2d 633 [2003] ), and we decline to exercise our power to review those challenges as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).
Defendant failed to preserve for our review his contention that he was denied a fair trial by prosecutorial misconduct on summation (see CPL 470.05[2] ; Drake, 138 A.D.3d at 1398, 31 N.Y.S.3d 328 ), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ). We have reviewed defendant's claims of ineffective assistance of counsel and conclude that they are without merit (see generally People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005] ; People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ).
Finally, defendant contends that he was denied a fair trial by the cumulative effect of the errors alleged herein. We reject defendant's contention with respect to the preserved alleged errors previously reviewed, and we decline to exercise our power to review his contention with respect to the unpreserved alleged errors as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ; People v. Terborg, 156 A.D.3d 1320, 1322, 67 N.Y.S.3d 730 [4th Dept. 2017], lv denied 31 N.Y.3d 1018, 78 N.Y.S.3d 288, 102 N.E.3d 1069 [2018] ).