Opinion
2012-08-1
The PEOPLE, etc., respondent, v. Vishnu PERSAUD, appellant.
Mischel & Horn, P.C., New York, N.Y. (Richard E. Mischel and Lisa Marlow Wolland of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J. Caferri, and Merri Turk Lasky of counsel), for respondent.
Mischel & Horn, P.C., New York, N.Y. (Richard E. Mischel and Lisa Marlow Wolland of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J. Caferri, and Merri Turk Lasky of counsel), for respondent.
MARK C. DILLON, J.P., RANDALL T. ENG, LEONARD B. AUSTIN, and SANDRA L. SGROI, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Holder, J.), rendered April 27, 2010, convicting him of rape in the second degree (6 counts), criminal sexual act in the second degree (five counts), and endangering the welfare of a child, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, the indictment was not invalid because it failed to specify the dates and times of the crimes that were charged ( seeCPL 200.50[6] ). Given the circumstances of this case, including the victim's age at the time of the commission of the crimes, the repetitive and clandestine nature of the crimes, and the continuous and long-term nature of the abuse, the one-month spans of time in each count of the indictment were reasonably specific and provided the defendant with the requisite adequate notice ( see People v. Watt, 81 N.Y.2d 772, 774, 593 N.Y.S.2d 782, 609 N.E.2d 135;People v. Keindl, 68 N.Y.2d 410, 419, 509 N.Y.S.2d 790, 502 N.E.2d 577;People v. Morris, 61 N.Y.2d 290, 293–296, 473 N.Y.S.2d 769, 461 N.E.2d 1256;People v. Weekes, 71 A.D.3d 1065, 896 N.Y.S.2d 687;People v. Case, 29 A.D.3d 706, 814 N.Y.S.2d 272;People v. Cosby, 222 A.D.2d 690, 636 N.Y.S.2d 73;cf. People v. Beauchamp, 74 N.Y.2d 639, 541 N.Y.S.2d 977, 539 N.E.2d 1105). Moreover, the counts were not duplicitous ( seeCPL 200.30[1]; cf. People v. Keindl, 68 N.Y.2d 410, 509 N.Y.S.2d 790, 502 N.E.2d 577;People v. Jiminez, 239 A.D.2d 360, 657 N.Y.S.2d 735).
The court providently exercised its discretion in allowing the People to put on an expert to testify about the concept of “blending,” which occurs when a child or adolescent sexual abuse victim and a perpetrator perform the same acts more than once in the same place and which makes it difficult for an adolescent to sequentially separate the distinct elements of what occurred. The court also providently exercised its discretion in permitting the People's expert to explain that a child or adolescent sexual abuse victim might delay his or her outcry as to the abuse. Such testimony explained behaviors of sexual abuse victims that jurors might not be expected to understand ( see People v. Spicola, 16 N.Y.3d 441, 462–463, 922 N.Y.S.2d 846, 947 N.E.2d 620,cert. denied––– U.S. ––––, 132 S.Ct. 400, 181 L.Ed.2d 257;People v. Keindl, 68 N.Y.2d at 422, 509 N.Y.S.2d 790, 502 N.E.2d 577).
The defendant's claim that the evidence was legally insufficient to establish his guilt is only partially preserved for appellate review ( seeCPL 470.05 [2]; People v. Smith, 23 A.D.3d 416, 804 N.Y.S.2d 774).In any event, viewing the evidence in the light most favorable to the prosecution ( see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to prove the defendant's guilt of all the crimes beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence ( seeCPL 470.15[5]; People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor ( see People v. Mateo, 2 N.Y.3d 383, 779 N.Y.S.2d 399, 811 N.E.2d 1053,cert. denied542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828;People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Upon reviewing the record herein, we are satisfied that the verdict of guilt as to all the crimes was not against the weight of the evidence ( see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).
The defendant's contention that the trial court displayed actual bias in favor of the People in its rulings and in certain comments which the court made during the summation is unpreserved for appellate review because the defendant failed to make a recusal motion ( seeCPL 470.05[2]; People v. Prado, 4 N.Y.3d 725, 726, 790 N.Y.S.2d 418, 823 N.E.2d 824;People v. Bedell, 84 A.D.3d 1733, 922 N.Y.S.2d 715;People v. White, 81 A.D.3d 1039, 916 N.Y.S.2d 652;People v. Marino, 21 A.D.3d 430, 432, 800 N.Y.S.2d 439,cert. denied548 U.S. 908, 126 S.Ct. 2930, 165 L.Ed.2d 958;People v. Darling, 276 A.D.2d 922, 714 N.Y.S.2d 393). In any event, the record does not support the defendant's bias claim ( see People v. Argentieri, 66 A.D.3d 558, 559, 887 N.Y.S.2d 568;People v. Casey, 61 A.D.3d 1011, 1014, 876 N.Y.S.2d 532;People v. Love, 307 A.D.2d 528, 532, 762 N.Y.S.2d 162;People v. Maxam, 301 A.D.2d 791, 793, 753 N.Y.S.2d 599).
The defendant argues that some of the comments made by the prosecutor during summation deprived him of his right to a fair trial. However, most of the challenged comments constituted fair comment on the evidence, were permissible rhetorical comment, or were responsive to defense counsel's summation ( see People v. Gillespie, 36 A.D.3d 626, 627, 831 N.Y.S.2d 83;People v. McHarris, 297 A.D.2d 824, 825, 748 N.Y.S.2d 57). To the extent that any of the comments were improper, they were not so flagrant or pervasive as to deny the defendant a fair trial and, thus, reversal is not warranted ( see People v. Rogers, 92 A.D.3d 903, 939 N.Y.S.2d 496;People v. Banyan, 60 A.D.3d 861, 875 N.Y.S.2d 548).
The defendant's remaining contentions are without merit.