| People v Herington |
| 2004 NYSlipOp 06901 |
| October 1, 2004 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Timothy P. Herington, Appellant. |
—[*1]
Appeal from a judgment of the Livingston County Court (Gerard J. Alonzo, Jr., J.), rendered May 8, 2003. The judgment convicted defendant, upon a jury verdict, of sodomy in the second degree (eight counts).
It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him following a jury trial of eight counts of sodomy in the second degree (Penal Law former § 130.45 [1]). Contrary to defendant's contention, County Court properly admitted expert testimony concerning child sexual abuse accommodation syndrome for the purpose of explaining why a child might not immediately report an incident of abuse (see People v Carroll, 95 NY2d 375, 387 [2000]). Also contrary to defendant's contention, "a Frye hearing was unnecessary because the expert[ ] testimony did not involve novel scientific evidence" (People v Middlebrooks, 300 AD2d 1142, 1143 [2002], lv denied 99 NY2d 630 [2003]; see generally People v Gillard, 7 AD3d 540 [2004]; People v Doherty, 305 AD2d 867 [2003], lv denied 100 NY2d 580 [2003]; People v Miles, 294 AD2d 930 [2002], lv denied 98 NY2d 678 [2002]). Furthermore, we conclude that the expert testimony was properly admitted during the People's case-in-chief and prior to the testimony of the complainant in order "to set the stage before [she] testifie[d]" (People v Parks, 41 NY2d 36, 49 [1976]).
Defendant's challenge to the legal sufficiency of the evidence is not preserved for our review (see People v Gray, 86 NY2d 10, 19 [1995]). Contrary to defendant's further contentions, the verdict is not against the weight of the evidence (see People v Bleakley, 69 NY2d 490, 495 [1987]) and the sentence is not unduly harsh or severe. We have reviewed defendant's remaining contention and conclude that it is without merit. Present—Pigott, Jr., P.J., Gorski, Martoche and Hayes, JJ.