Opinion
2012-03-13
The PEOPLE, etc., respondent, v. Tyrone SIMMONS, appellant.
Richard L. Herzfeld, P.C., New York, N.Y., for appellant. Janet DiFiore, District Attorney, White Plains, N.Y. (Maria I. Wager, Lois Cullen Valerio, and Richard Longworth Hecht of counsel), for respondent.
Richard L. Herzfeld, P.C., New York, N.Y., for appellant. Janet DiFiore, District Attorney, White Plains, N.Y. (Maria I. Wager, Lois Cullen Valerio, and Richard Longworth Hecht of counsel), for respondent.
RUTH C. BALKIN, J.P., RANDALL T. ENG, L. PRISCILLA HALL, and SANDRA L. SGROI, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Wetzel, J.), rendered October 16, 2009, convicting him of sexual abuse in the first degree (three counts), upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's contention that the evidence was legally insufficient to support his conviction of sexual abuse in the first degree under count eight of the indictment is unpreserved for appellate review ( see CPL 470.05[2]; People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946; People v. Padro, 75 N.Y.2d 820, 821, 552 N.Y.S.2d 555, 551 N.E.2d 1233). In any event, viewing the evidence in the light most favorable to the People ( see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to support his conviction under that count. Moreover, upon our independent review pursuant to CPL 470.15(5), we are satisfied that the verdict of guilt on that count 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 Supreme Court did not improvidently exercise its discretion in admitting into evidence the testimony of an expert witness that the lack of physical trauma to the complainant was not inconsistent with the occurrence of a forcible sexual assault ( see People v. Menendez, 50 A.D.3d 1061, 1061–1062, 856 N.Y.S.2d 647; People v. Heer, 12 A.D.3d 1154, 1155, 784 N.Y.S.2d 412). That testimony, fairly interpreted, did not suggest or imply that the lack of trauma was evidence that the complainant was being truthful or that the expert believed that the complainant was being truthful. Rather, it was admitted, properly, to assist the jury in determining the significance of the absence of physical trauma ( cf. People v. McDaniel, 81 N.Y.2d 10, 16–17, 595 N.Y.S.2d 364, 611 N.E.2d 265; People v. Carroll, 300 A.D.2d 911, 914, 753 N.Y.S.2d 148). Further, the defendant elicited testimony from the expert about the incidence of false claims of sexual assault, and he did not move to strike that testimony, so he has no basis to complain about it now ( see People v. Stalter, 77 A.D.3d 776, 777, 909 N.Y.S.2d 516; People v. Fraley, 183 A.D.2d 781, 782, 584 N.Y.S.2d 315; People v. Concepcion, 175 A.D.2d 324, 326, 572 N.Y.S.2d 940).
The Supreme Court did not err in imposing consecutive sentences on the sexual abuse in the first degree convictions under counts nine and ten of the indictment, inasmuch as the evidence at trial demonstrated that the two offenses were committed through separate and distinct acts ( see People v. Rodriguez, 49 A.D.3d 433, 435, 853 N.Y.S.2d 351; People v. Wynn, 35 A.D.3d 283, 284, 827 N.Y.S.2d 35).
The defendant's remaining contentions are without merit.