Opinion
2014-06-18
The PEOPLE, etc., respondent, v. Anderson DAVIS II, appellant.
Terry D. Horner, Poughkeepsie, N.Y., for appellant. William V. Grady, District Attorney, Poughkeepsie, N.Y. (Joan H. McCarthy of counsel), for respondent.
Terry D. Horner, Poughkeepsie, N.Y., for appellant. William V. Grady, District Attorney, Poughkeepsie, N.Y. (Joan H. McCarthy of counsel), for respondent.
MARK C. DILLON, J.P., THOMAS A. DICKERSON, JEFFREY A. COHEN, and COLLEEN D. DUFFY, JJ.
Appeal by the defendant from a judgment of the County Court, Dutchess County (T. Dolan, J.), rendered August 1, 2006, convicting him of course of sexual conduct against a child in the first degree, rape in the first degree, and rape in the second degree (20 counts), upon a jury verdict, and sentencing him to a determinate term of imprisonment of 12 years followed by a period of 5 years of postrelease supervision on the conviction of course of sexual conduct against a child in the first degree, to run consecutively to the sentences imposed upon the convictions of rape in the second degree and rape in the first degree, indeterminate terms of imprisonment of 2 1/3 to 7 years on the convictions of rape in the second degree, to run concurrently with each other, and a determinate term of imprisonment of 12 years followed by a period of 5 years of postrelease supervision on the conviction of rape in the first degree, to run consecutively to the sentences imposed upon the convictions of sexual conduct against a child in the first degree and rape in the second degree.
ORDERED that the judgment is modified, on the law, by directing that the terms of imprisonment imposed upon the convictions of course of sexual conduct against a child in the first degree and rape in the second degree under count two of the indictment shall run concurrently with each other; as so modified, the judgment is affirmed.
Contrary to the People's contention, the defendant's argument that the evidence was legally insufficient to support his convictions is preserved for appellate review ( seeCPL 470.05[2]; People v. Beriguete, 51 A.D.3d 939, 940, 858 N.Y.S.2d 369;People v. Mendez, 34 A.D.3d 697, 698, 824 N.Y.S.2d 416). Viewing the evidence in the light most favorable to the prosecution ( 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 establish the defendant's guilt of course of sexual conduct in the first degree, rape in the first degree, and rape in the second degree (20 counts), 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, 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. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Upon reviewing the record here, we are satisfied that the verdict of guilt as to all of the crimes of which the defendant was convicted 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 County Court providently exercised its discretion in permitting the expert testimony of Dr. Eileen Treacy on the subject of child sexual accommodation syndrome. “ ‘Expert testimony is properly admitted if it helps to clarify an issue calling for professional or technical knowledge, possessed by the expert and beyond the ken of the typical juror’ ” ( People v. Gopaul, 112 A.D.3d 966, 966, 977 N.Y.S.2d 95, quoting People v. Diaz, 20 N.Y.3d 569, 575, 965 N.Y.S.2d 738, 988 N.E.2d 473;see People v. Williams, 20 N.Y.3d 579, 583, 964 N.Y.S.2d 483, 987 N.E.2d 260). “[E]xpert testimony regarding rape trauma syndrome, abused child syndrome or similar conditions may be 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). Dr. Treacy's testimony was properly admitted to explain why a child's disclosure of sexual abuse may delayed ( see People v. Williams, 20 N.Y.3d at 584, 964 N.Y.S.2d 483, 987 N.E.2d 260;People v. Diaz, 20 N.Y.3d at 575, 965 N.Y.S.2d 738, 988 N.E.2d 473;People v. Carroll, 95 N.Y.2d at 387, 718 N.Y.S.2d 10, 740 N.E.2d 1084;People v. Gopaul, 112 A.D.3d at 966, 977 N.Y.S.2d 95;People v. Gayden, 107 A.D.3d 1428, 1429, 967 N.Y.S.2d 277). Contrary to the defendant's contention, Dr. Treacy's testimony was general in nature and did not impermissibly suggest that the charged crimes occurred ( see People v. Diaz, 20 N.Y.3d at 575, 965 N.Y.S.2d 738, 988 N.E.2d 473; People v. Carroll, 95 N.Y.2d at 387, 718 N.Y.S.2d 10, 740 N.E.2d 1084;People v. Gopaul, 112 A.D.3d at 966, 977 N.Y.S.2d 95).
“A granting of an adjournment for any purpose is a matter of discretion for the trial court” ( People v. Muriel–Herrera, 68 A.D.3d 1135, 1136, 892 N.Y.S.2d 150). Here, the County Court providently exercised its discretion in denying defense counsel's request for an adjournment for preparation of a memorandum ( cf. People v. McRae, 62 A.D.3d 723, 724, 879 N.Y.S.2d 493), and in denying defense counsel's request for an adjournment of the sentencing hearing ( see People v. Hardy, 294 A.D.2d 516, 742 N.Y.S.2d 562).
The defendant was convicted, under count one of the indictment, of course of sexual conduct against a child in the first degree, for engaging in two or more acts of sexual conduct with the victim occurring over a period of time not less than three months between July 1998 and June 3, 1999 ( seePenal Law § 130.75[1][a] ). The defendant was also convicted, under count two of the indictment, of rape in the second degree, for engaging in sexual intercourse with the victim in June 1999 ( seePenal Law § 130.30[1] ). The sentences imposed upon the defendant's convictions under counts one and two were improperly made to run consecutively, rather than concurrently ( seePenal Law § 70.25[2–e]; People v. Wood, 37 A.D.3d 283, 831 N.Y.S.2d 39). However, contrary to the defendant's contention, the County Court properly directed that the sentence imposed upon his conviction of course of sexual conduct against a child in the first degree was to run consecutively to the sentences imposed upon the other convictions of rape in the second degree, inasmuch as each of these counts of rape in the second degree involved separate sexual acts that happened after June 3, 1999.
The sentences imposed were not excessive ( see People v. Suitte, 90 A.D.2d 80, 85–86, 455 N.Y.S.2d 675).
The defendant's remaining contentions are unpreserved for appellate review ( seeCPL 470.05[2] ), and we decline to review them in the exercise of our interest of justice jurisdiction.