Opinion
2011-08-23
The PEOPLE, etc., respondent,v.Johnny PIEDRA, appellant.
Robert DiDio, Kew Gardens, N.Y., 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.
Robert DiDio, Kew Gardens, N.Y., 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.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Holder, J.), rendered February 1, 2010, convicting him of criminal sexual act in the first degree, sexual abuse in the second degree, endangering the welfare of a child (two counts), and sexual abuse in the first degree (two counts), upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, the Supreme Court did not err in permitting the prosecution to call an expert witness, a psychologist, to testify about, inter alia, intra-family rape trauma syndrome. The testimony was properly admitted “to explain behavior of ... victim[s] 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. Rich, 78 A.D.3d 1200, 1202, 912 N.Y.S.2d 124). The expert “spoke about victims in general and never opined that the defendant committed the crimes, that the victim[s] w[ere] sexually abused, or that the victim[s'] specific actions and behavior were consistent with abuse” ( People v. Rich, 78 A.D.3d at 1202, 912 N.Y.S.2d 124; see People v. Carroll, 95 N.Y.2d at 387, 718 N.Y.S.2d 10, 740 N.E.2d 1084; People v. Taylor, 75 N.Y.2d 277, 292–293, 552 N.Y.S.2d 883, 552 N.E.2d 131).
The Supreme Court also did not err in granting the prosecutor's application to preclude the defendant from questioning one of the complainants about an entry in her diary indicating that a classmate had sexually abused her. The defendant did not make a showing that the circumstances or manner of the assault described in the diary “were such as to suggest a pattern casting substantial doubt on the validity of the charges made by the victim in this instance or were such as otherwise to indicate a significant probative relation to such charges” ( People v. Mandel, 48 N.Y.2d at 953, 425 N.Y.S.2d 63, 401 N.E.2d 185; cf. People v. Hunter, 11 N.Y.3d 1, 6, 862 N.Y.S.2d 301, 892 N.E.2d 365). Moreover, there is no indication in the record that the complainant reported the incident described in the diary to anyone or confirmed that it occurred ( see People v. Gunther, 67 A.D.3d 1477, 1478, 888 N.Y.S.2d 842).
The defendant's contention that the Supreme Court erred in failing to give a missing witness charge is unpreserved for appellate review ( see CPL 470.05 [2]; People v. Hernandez, 74 A.D.3d 839, 840, 901 N.Y.S.2d 543; People v. Jacobs, 65 A.D.3d 594, 596, 884 N.Y.S.2d 656) and, in any event, is without merit ( see People v. Gonzalez, 68 N.Y.2d 424, 427, 509 N.Y.S.2d 796, 502 N.E.2d 583; People v. Rodriguez, 77 A.D.3d 975, 976, 911 N.Y.S.2d 79).
The defendant's contention that the Supreme Court's interested witness charge to the jury unfairly singled him out, disparaged his credibility, and undermined the presumption of innocence is unpreserved for appellate review ( see CPL 470.05[2]; People v. Patterson, 39 N.Y.2d 288, 294–295, 383 N.Y.S.2d 573, 347 N.E.2d 898, affd. 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281; People v. Jean–Baptiste, 37 A.D.3d 852, 852–853, 829 N.Y.S.2d 919). In any event, “[t]he jury charge contained no language stating that the defendant had ‘a motive to lie or deep personal interest in the case,’ and nothing in the charge assumed or suggested that he was guilty or shifted the burden of proof” ( People v. Brokenbough, 52 A.D.3d 525, 525, 859 N.Y.S.2d 678, quoting People v. Blake, 39 A.D.3d 402, 403, 835 N.Y.S.2d 78; cf. People v. Ochs, 3 N.Y.2d 54, 56, 163 N.Y.S.2d 671, 143 N.E.2d 388; United States v. Brutus, 505 F.3d 80, 87–88; United States v. Gaines, 457 F.3d 238, 244–250). Moreover, the charge was not unbalanced ( see People v. Campbell, 68 A.D.3d 890, 891, 890 N.Y.S.2d 606; see also People v. Varughese, 21 A.D.3d 1126, 1128, 801 N.Y.S.2d 415).
The sentence imposed was not excessive ( see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).