Opinion
826 KA 17-00658
11-20-2020
The PEOPLE of the State of New York, Respondent, v. Donald R. MEYERS, Defendant-Appellant.
JAMES S. HINMAN, ROCHESTER, FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
JAMES S. HINMAN, ROCHESTER, FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, CURRAN, AND BANNISTER, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him following a jury trial of course of sexual conduct against a child in the first degree ( Penal Law § 130.75 [1] [b] ), criminal sexual act in the second degree (§ 130.45 [1]), and sexual abuse in the second degree (§ 130.60 [2]). In the indictment and bill of particulars, the People alleged that the course of sexual conduct against the child occurred "[o]n or about and between July 30, 2010 and June 25, 2014." Despite a demand from the prosecution, defendant never served any notice of alibi pursuant to CPL 250.20 (1). During the first trial, which ended in a mistrial, and again at the second trial, the People established that the night of July 30, 2010 was the night that defendant's friend passed away and the night that one of the acts of sexual conduct occurred. That friend's father testified at the first trial that defendant was at the friend's house for some period of time that night. At the second trial, defendant again called the friend's father to testify, and he testified that defendant was at the friend's house until 1:00 a.m. on the night of the friend's death. Defendant thereafter sought to have his sister testify that she picked up defendant from the friend's house and that defendant spent the remainder of that night at her house. County Court precluded that testimony on the ground that defendant failed to file any notice of alibi. We reject defendant's contention that the court abused its discretion in precluding that alibi testimony.
Contrary to defendant's contention, the testimony constituted alibi evidence inasmuch as the victim testified at the second trial that defendant arrived at the location where the victim was staying between 10:00 p.m. and 11:00 p.m. on that night and that, sometime during that night, he committed acts of oral and anal sexual conduct against her. Given that the crime occurred sometime after 10 or 11 p.m. and the testimony of defendant's sister would have placed him at a different location during the time frame of one of the "particular incident[s]" of the continuing crime ( Matter of Block v. Ambach , 73 N.Y.2d 323, 334, 540 N.Y.S.2d 6, 537 N.E.2d 181 [1989] ), we conclude that the notice requirements of CPL 250.20 (1) applied (cf. People v. Hicks , 94 A.D.3d 1483, 1484, 943 N.Y.S.2d 344 [4th Dept. 2012] ; People v. Bennett , 128 A.D.2d 540, 540, 512 N.Y.S.2d 472 [2d Dept. 1987], lv denied 69 N.Y.2d 1001, 517 N.Y.S.2d 1034, 511 N.E.2d 93 [1987] ). We further conclude that the court did not abuse its discretion in precluding that alibi evidence (see CPL 250.20 [3] ). There was no "good cause" for defendant's failure to file a notice of alibi ( CPL 250.20 [1] ). Even if defense counsel did not learn of the sister's potential alibi testimony until the second trial, defendant would have known from the time of the first trial, i.e., when a date in the indictment was linked to a specific event, whether he was with anyone on that night (see People v. Batchilly , 33 A.D.3d 360, 361, 821 N.Y.S.2d 597 [1st Dept. 2006], lv denied 7 N.Y.3d 900, 826 N.Y.S.2d 609, 860 N.E.2d 71 [2006], reconsideration denied 8 N.Y.3d 878, 832 N.Y.S.2d 490, 864 N.E.2d 620 [2007] ; People v. Whitehead , 305 A.D.2d 286, 287, 760 N.Y.S.2d 35 [1st Dept. 2003], lv denied 100 N.Y.2d 600, 766 N.Y.S.2d 176, 798 N.E.2d 360 [2003] ). In our view, "[t]he emergence of the alibi witness at the eleventh hour indicated that her proposed testimony was a product of recent fabrication ... and warrants a finding of willful conduct on the part of defendant, personally" ( People v. Walker , 294 A.D.2d 218, 219, 743 N.Y.S.2d 403 [1st Dept. 2002], lv denied 98 N.Y.2d 772, 752 N.Y.S.2d 13, 781 N.E.2d 925 [2002] ; see Batchilly , 33 A.D.3d at 361, 821 N.Y.S.2d 597 ).
We further conclude that the court did not err in permitting expert testimony on child sexual abuse accommodation syndrome (CSAAS) at the second trial even though it had precluded such testimony at the first trial. Such testimony helped to explain the victim's behavior during the years of sexual abuse (see generally 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] ) and, contrary to defendant's contention, it did not serve to bolster the victim's testimony (cf. People v. Ruiz , 159 A.D.3d 1375, 1376, 73 N.Y.S.3d 308 [4th Dept. 2018] ). Defendant finally contends that he was denied effective assistance of counsel based on defense counsel's failure to file an alibi notice and failure "to identify, or utilize an expert in relation" to the CSAAS testimony. We reject that contention. With respect to the failure to secure opposition CSAAS testimony, " ‘[d]efendant has not demonstrated that such testimony was available, that it would have assisted the jury in its determination or that he was prejudiced by its absence’ " ( People v. Kilbury , 83 A.D.3d 1579, 1580, 921 N.Y.S.2d 432 [4th Dept. 2011], lv denied 17 N.Y.3d 860, 932 N.Y.S.2d 25, 956 N.E.2d 806 [2011] ; see People v. Englert , 130 A.D.3d 1532, 1533, 14 N.Y.S.3d 848 [4th Dept. 2015], lv denied 26 N.Y.3d 967, 18 N.Y.S.3d 603, 40 N.E.3d 581 [2015], lv denied 26 N.Y.3d 1144, 32 N.Y.S.3d 58, 51 N.E.3d 569 [2016] ). Defendant's contention with respect to defense counsel's failure to file an alibi notice involves matters outside the record on direct appeal and, as a result, must be raised in a CPL 440.10 motion (see e.g. People v. Williams [appeal No. 2], 175 A.D.3d 980, 981, 108 N.Y.S.3d 584 [4th Dept. 2019], lv denied 34 N.Y.3d 1020, 114 N.Y.S.3d 744, 138 N.E.3d 473 [2019] ; People v. Almonte , 171 A.D.3d 470, 471, 98 N.Y.S.3d 24 [1st Dept. 2019], lv denied 33 N.Y.3d 1102, 106 N.Y.S.3d 659, 130 N.E.3d 1269 [2019] ). 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 (see generally People v. Baldi , 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ).