Opinion
2012-02-23
The PEOPLE of the State of New York, Respondent, v. Anthony C. LUPO Sr., Appellant.
Randolph V. Kruman, Cortland, for appellant. Gwen Wilkinson, District Attorney, Ithaca (Andrew M. McElwee of counsel), for respondent.
Randolph V. Kruman, Cortland, for appellant. Gwen Wilkinson, District Attorney, Ithaca (Andrew M. McElwee of counsel), for respondent.
Before: ROSE, J.P., MALONE JR., STEIN, MCCARTHY and EGAN JR., JJ.
MCCARTHY, J.
Appeal from a judgment of the County Court of Tompkins County (Rowley, J.), rendered June 5, 2009, (1) upon a verdict convicting defendant of the crimes of course of sexual conduct against a child in the first degree and course of sexual conduct against a child in the second degree, and (2) convicting defendant upon his plea of guilty of the crime of course of sexual conduct against a child in the second degree.
After a trial addressing defendant's inappropriate touching of two young female relatives, a jury found him guilty of course of sexual conduct against a child in the first degree regarding one victim and course of sexual conduct against a child in the second degree regarding the other victim. In satisfaction of a separate indictment regarding a third victim, defendant entered an Alford plea to course of sexual conduct against a child in the second degree. County Court imposed a sentence of 10 years in prison followed by 20 years of postrelease supervision for course of sexual conduct against a child in the first degree, a consecutive term of seven years in prison and 10 years of postrelease supervision for the tried count of course of sexual conduct against a child in the second degree and, pursuant to his plea agreement, a concurrent term of five years in prison and 10 years of postrelease supervision for the other count of course of sexual conduct against a child in the second degree. Defendant appeals.
The conviction for course of sexual conduct against a child in the first degree is supported by legally sufficient evidence. As relevant here, a person is guilty of that charge “when, over a period of time not less than three months in duration ... he or she engages in two or more acts of sexual conduct, which includes at least one act of ... oral sexual conduct ... with a child less than [11] years old” ( Penal Law § 130.75[1] [a] ). The victim who was the subject of this charge testified that she visited defendant's home on certain holidays and several times each summer. She testified that during those visits between August 1, 1996 and when she turned 11 years old in February 1999, defendant touched her breasts and vagina both over and under her clothing numerous times. She further testified that on one occasion when defendant took her swimming in the summertime, he kissed her vagina. This testimony established more than two acts of sexual conduct and an act of oral sexual conduct over a time period longer than three months in duration.
Defendant's brief does not address in any way the count to which he pleaded guilty, or the sufficiency of the evidence concerning the other count of which he was convicted after trial. Thus, he has abandoned any arguments on those issues ( see People v. Walrad, 22 A.D.3d 883, 883 n., 802 N.Y.S.2d 535 [2005] ).
The only substantial question was whether the People proved that the oral sexual conduct occurred after the August 1, 1996 effective date of the statute, as prosecution is not permitted for offenses occurring prior to that date ( see L 1996, ch 122, § 7). Defendant points to the victim's testimony that this incident occurred in the “[s]ummertime” when she was “[r]oughly eight or nine” years old. This testimony alone would not be sufficient, as the victim was eight years old in the summer of 1996, leaving open the possibility that this incident occurred prior to the statute's August 1, 1996 effective date. She later responded affirmatively, however, when specifically asked whether the incident where defendant kissed her vagina occurred during the time period between August 1, 1996 and the time that she turned 11 years old. Thus, the victim's testimony constituted legally sufficient evidence to establish all of the elements of course of sexual conduct against a child in the first degree ( see People v. Reynolds, 81 A.D.3d 1166, 1166–1167, 917 N.Y.S.2d 401 [2011], lv. denied 16 N.Y.3d 898, 926 N.Y.S.2d 34, 949 N.E.2d 982 [2011]; People v. Nowinski, 36 A.D.3d 1082, 1083, 827 N.Y.S.2d 356 [2007], lv. denied 8 N.Y.3d 989, 838 N.Y.S.2d 492, 869 N.E.2d 668 [2007]; People v. Frary, 29 A.D.3d 1223, 1224–1225, 815 N.Y.S.2d 334 [2006], lv. denied 7 N.Y.3d 788, 821 N.Y.S.2d 818, 854 N.E.2d 1282 [2006] ).
County Court did not assume the role of an advocate by posing questions to witnesses. The court “is permitted to raise matters on its own initiative in order to elicit significant facts, clarify or enlighten an issue or to facilitate the orderly and expeditious progress of the trial” ( People v. Tucker, 140 A.D.2d 887, 891, 528 N.Y.S.2d 705 [1988], lv. denied 72 N.Y.2d 913, 532 N.Y.S.2d 762, 528 N.E.2d 1235 [1988]; see People v. Yut Wai Tom, 53 N.Y.2d 44, 57, 439 N.Y.S.2d 896, 422 N.E.2d 556 [1981] ). Here, the court did not err by asking a few questions of the People's expert to determine the relevancy of her potential testimony ( compare People v. Ahearn, 88 A.D.2d 691, 692, 451 N.Y.S.2d 318 [1982] ). Additionally, the court did not exceed its authority by seeking to clarify the age of one victim at the time of a particular incident. Thus, defendant was not deprived of a fair trial when the court questioned some witnesses ( see People v. Yut Wai Tom, 53 N.Y.2d at 57, 439 N.Y.S.2d 896, 422 N.E.2d 556; People v. Parrotte, 34 A.D.3d 921, 922, 823 N.Y.S.2d 593 [2006] ).
Given a trial court's “considerable discretion in determining the admissibility of expert testimony” ( People v. Lamont, 21 A.D.3d 1129, 1132, 800 N.Y.S.2d 480 [2005], lv. denied 6 N.Y.3d 835, 814 N.Y.S.2d 83, 847 N.E.2d 380 [2006] ), we cannot say that County Court erred in permitting testimony on child sexual abuse accommodation syndrome by a licensed clinical social worker who is the executive director of an organization that assists victims of, among other things, sexual abuse ( see People v. Pomales, 49 A.D.3d 962, 963–964, 853 N.Y.S.2d 407 [2008], lv. denied 10 N.Y.3d 938, 862 N.Y.S.2d 345, 892 N.E.2d 411 [2008] ). That expert, who had never met the victims, testified generally about the syndrome, did not bolster the victims' testimony and did not attempt to prove that defendant committed the charged crimes ( see People v. Gregory, 78 A.D.3d 1246, 1247, 910 N.Y.S.2d 295 [2010], lv. denied 16 N.Y.3d 831, 921 N.Y.S.2d 195, 946 N.E.2d 183 [2011]; People v. Pereau, 45 A.D.3d 978, 980, 845 N.Y.S.2d 536 [2007], lv. denied 9 N.Y.3d 1037, 852 N.Y.S.2d 22, 881 N.E.2d 1209 [2008]; compare People v. Taylor, 75 N.Y.2d 277, 293, 552 N.Y.S.2d 883, 552 N.E.2d 131 [1990] ). Hence, the expert testimony was permissible.
ORDERED that the judgment is affirmed.