Opinion
No. KA 08-02336.
April 24, 2009.
Appeal from a judgment of the Erie County Court (Michael L. D'Amico, J.), rendered August 9, 2007. The judgment convicted defendant, upon a jury verdict, of sodomy in the first degree (six counts), sexual abuse in the first degree (three counts) and endangering the welfare of a child.
LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (ROGER W. WILCOX, JR., OF COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (SHAWN P. HENNESSY OF COUNSEL), FOR RESPONDENT.
Present: Scudder, P.J., Martoche, Fahey, Peradotto and Green, JJ.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of six counts of sodomy in the first degree (Penal Law former § 130.50 [3]), three counts of sexual abuse in the first degree (§ 130.65 [3]) and one count of endangering the welfare of a child (§ 260.10 [1]). We reject defendant's contentions that County Court erred in admitting expert testimony concerning child sex abuse accommodation syndrome ( see People v Carroll, 95 NY2d 375, 387; People v Miles, 294 AD2d 930, lv denied 98 NY2d 678), as well as statements made by the victim concerning the incidents at issue to a nurse practitioner that were relevant to the victim's diagnosis and treatment ( see People v White, 306 AD2d 886, lv denied 100 NY2d 625). Contrary to defendant's further contention, "[t]he court properly precluded defendant from introducing evidence concerning his reputation for truth and veracity, because that evidence did not relate to a trait involved in the charges of . . . sodomy, sexual abuse or endangering the welfare of a child" ( People v Fanning, 209 AD2d 978, 978, lv denied 85 NY2d 908; see People v Renner, 269 AD2d 843, 844).
Defendant failed to preserve for our review his challenge to the court's preliminary jury instructions ( see CPL 470.05; People v Giddens, 202 AD2d 976, lv denied 83 NY2d 871), and we decline to exercise our power to review that challenge as a matter of discretion in the interest of justice ( see CPL 470.15 [a]). Considering all of the relevant circumstances, we conclude that the time frames set forth in the indictment were sufficiently specific to enable defendant to prepare a defense ( see People v Furlong, 4 AD3d 839, 840-841, lv denied 2 NY3d 739; see generally People v Watt, 81 NY2d 772, 774-775). We reject the contention of defendant that defense counsel was ineffective in failing to preserve certain contentions for our review. "`Deprivation of appellate review . . . does not per se establish ineffective assistance of counsel' . . . but, rather, a defendant must also show that his or her contention would be meritorious upon appellate review," and defendant failed to make that showing ( People v Bassett, 55 AD3d 1434, 1438, lv denied 11 NY3d 922). Viewing the evidence in light of the elements of the crimes as charged to the jury ( see People v Danielson, 9 NY3d 342, 349), and according great deference to the jury's resolution of credibility issues, we conclude that the verdict is not contrary to the weight of the evidence ( see generally People v Bleakley, 69 NY2d 490, 495). The general motion by defendant for a trial order of dismissal at the close of proof did not preserve for our review his challenge to the legal sufficiency of the evidence ( see People v Gray, 86 NY2d 10, 19). Finally, the sentence is not unduly harsh or severe.