Opinion
2013-05454 Ind. No. 543/12.
03-09-2016
The PEOPLE, etc., respondent, v. Kerin MITCHELL, appellant.
Lynn W.L. Fahey, New York, N.Y. (Nao Terai of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Ruth E. Ross of counsel; Jacquelyn Dainow on the brief), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Nao Terai of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Ruth E. Ross of counsel; Jacquelyn Dainow on the brief), for respondent.
Opinion
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Garnett, J.), rendered May 10, 2013, convicting him of rape in the third degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
“ ‘[E]xpert opinion is proper when it would help to clarify an issue calling for professional or technical knowledge, possessed by the expert and beyond the ken of the typical juror’ ” (People v. Taylor, 75 N.Y.2d 277, 288, 552 N.Y.S.2d 883, 552 N.E.2d 131, quoting De Long v. Erie County, 60 N.Y.2d 296, 307, 469 N.Y.S.2d 611, 457 N.E.2d 717). Contrary to the defendant's contention, the Supreme Court providently exercised its discretion in permitting the prosecution to call an expert witness to testify about rape trauma syndrome. The expert's testimony was properly 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. Davis, 118 A.D.3d 906, 988 N.Y.S.2d 217; People v. Nelson, 40 A.D.3d 1126, 837 N.Y.S.2d 697; People v. Byron, 2 A.D.3d 453, 767 N.Y.S.2d 806). Moreover, the expert “spoke about victims in general and never opined that the defendant committed the crimes, that the victim was sexually abused, or that the victim's specific actions and behavior were consistent with abuse” (People v. Rich, 78 A.D.3d 1200, 1202, 912 N.Y.S.2d 124; see People v. Piedra, 87 A.D.3d 706, 928 N.Y.S.2d 752).
The defendant's contention that certain of the prosecutor's summation remarks deprived him of a fair trial is unpreserved for appellate review because defense counsel failed to object to those remarks at trial (see People v. Singh, 109 A.D.3d 1010, 971 N.Y.S.2d 544; People v. Perez, 77 A.D.3d 974, 909 N.Y.S.2d 644; People v. Gill, 54 A.D.3d 965, 864 N.Y.S.2d 135). In any event, the challenged remarks did not exceed the bounds of rhetorical comment permitted during summation, and constituted either a fair response to defense counsel's summation, or fair comment on the evidence presented or the inferences to be drawn therefrom (see People v. Webster, 126 A.D.3d 821, 5 N.Y.S.3d 492; People v. Scurry, 123 A.D.3d 949, 996 N.Y.S.2d 732; People v. Marcus, 112 A.D.3d 652, 975 N.Y.S.2d 771; People v. Cephas, 91 A.D.3d 668, 935 N.Y.S.2d 655; People v. Beam, 78 A.D.3d 1067, 912 N.Y.S.2d 263; People v. Whitehurst, 70 A.D.3d 1057, 895 N.Y.S.2d 523).
Furthermore, defense counsel's failure to object to the prosecutor's remarks during summation did not deprive the defendant of the effective assistance of counsel (see People v. Carter, 130 A.D.3d 1060, 14 N.Y.S.3d 901; People v. Lenoir, 57 A.D.3d 802, 871 N.Y.S.2d 201).
DILLON, J.P., COHEN, MALTESE and BARROS, JJ., concur.