| People v Valentine |
| 2008 NY Slip Op 01231 [48 AD3d 1268] |
| February 8, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Sheldrick O.Valentine, Appellant. |
—[*1] Frank J. Clark, District Attorney, Buffalo (Michael J. Hillery of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Shirley Troutman, J.), rendered June 15,2005. The judgment convicted defendant, upon a jury verdict, of course of sexual conduct againsta child in the first degree and endangering the welfare of a child.
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,inter alia, course of sexual conduct against a child in the first degree (Penal Law § 130.75[1] [a]). Defendant failed to preserve for our review his contention that County Court erred inallowing the People to present the testimony of their expert on the subject of child sexual abuse(see People v Kairis, 4 AD3d806, 807 [2004], lv denied 2 NY3d 763 [2004]; People v Law, 273 AD2d897, 898 [2000], lv denied 95 NY2d 965 [2000]) and, in any event, that contention iswithout merit (see People vMcHerrin, 19 AD3d 1166 [2005], lv denied 5 NY3d 808 [2005]; seegenerally People v Taylor, 75 NY2d 277, 292-293 [1990]). Defendant also failed to preservefor our review his contention that the testimony of the People's additional expert with respect tothe percentage of child sexual abuse allegations that are unfounded improperly bolstered thevictim's credibility inasmuch as defendant objected to that testimony only on the ground that itwas irrelevant (see generally People v Smith, 219 AD2d 794 [1995], lv denied 86NY2d 875 [1995]). In any event, we conclude that defendant opened the door to that allegedlyimproper testimony, and thus that contention lacks merit (see generally People vMelendez, 55 NY2d 445, 451-452 [1982]). Furthermore, the court was not required todeclare or certify on the record that the witness was an expert before permitting him to testify (see People v Wagner, 27 AD3d671, 672 [2006], lv denied 6 NY3d 854 [2006]; People v Eldridge, 221AD2d 966, 967 [1995], lv denied 87 NY2d 1019 [1996]).
Defendant failed to preserve for our review his further contentions that the court erred inpermitting one of the People's experts to testify with respect to scientific studies not admitted inevidence and in permitting the victim to testify concerning her prior consistent statements(see CPL 470.05 [2]), and we decline to exercise our power to review those contentionsas a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). Defendantfailed to renew his motion for a trial order of dismissal after presenting evidence and thus failedto preserve for our review his contention that the evidence is legally insufficient to support theconviction (see People v Hines, 97 NY2d 56, 61 [2001], rearg denied 97 NY2d678 [2001]). Further, the verdict is not against [*2]the weight ofthe evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]).
We reject the contention of defendant that the court violated his constitutional right ofconfrontation by refusing to admit in evidence a tape recording of threats made against him byhis ex-wife. "[T]he extent to which an examination may be pursued for the purpose of provingthe hostility of a witness is within the discretion of the court" (People v Sutherland, 280AD2d 622, 623 [2001], lv denied 96 NY2d 835 [2001]; see also People v Jones, 37 AD3d1111 [2007], lv denied 8 NY3d 986 [2007]). "If bias or interest has been fullyexplored through other means . . . , or the precluded area involved cumulativematter already presented . . . , there generally has been no infringement of the rightof confrontation" (People v Chin, 67 NY2d 22, 29 [1986]; see People v Corby, 6 NY3d 231,235-236 [2005]) and, here, the court afforded defendant a sufficient opportunity to establish thehostility of the witness. Contrary to the further contention of defendant, the court properlypermitted his ex-wife to testify concerning their marital discord to explain or clarify issuesbrought out on cross-examination (see generally People v Mateo, 2 NY3d 383, 425[2004], cert denied 542 US 946 [2004]).
Contrary to defendant's further contention, the court properly permitted the People's medicalexpert to testify that the physical findings resulting from the victim's medical examination wereconsistent with sexual abuse inasmuch as "the conclusions to be drawn from [those findings]'depend upon professional or scientific knowledge or skill not within the range of ordinarytraining or intelligence' " (People v Cronin, 60 NY2d 430, 432 [1983], quotingDougherty v Milliken, 163 NY 527, 533 [1900]). We reject the contention of defendantthat he was denied effective assistance of counsel (see generally People v Baldi, 54 NY2d137, 147 [1981]). The sentence is not unduly harsh or severe.
We have considered defendant's remaining contentions and conclude that they are withoutmerit. Present—Hurlbutt, J.P., Smith, Fahey, Peradotto and Pine, JJ.