| People v Pomales |
| 2008 NY Slip Op 02047 [49 AD3d 962] |
| March 13, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Carlos I.Pomales, Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Robin S. Engler of counsel), forrespondent.
Cardona, P.J. Appeal from a judgment of the County Court of Broome County (Smith, J.),rendered January 12, 2007, upon a verdict convicting defendant of the crimes of rape in thesecond degree, sexual abuse in the second degree and endangering the welfare of a child (twocounts).
Following a jury trial, defendant was convicted of rape in the second degree, sexual abuse inthe second degree and two counts of endangering the welfare of a child stemming from the then39-year-old defendant's ongoing sexual contact with his then 13- and 14-year-old stepdaughters.He was sentenced as a second felony offender to a prison term of 3½ to 7 years for the rapeconviction together with three concurrent one-year jail terms on the remaining convictions.
Initially, defendant contends that the verdict is against the weight of the evidence. Withreference to the conviction of rape in the second degree (see Penal Law § 130.30[1]), the victim testified that in October 2005 when she was 14 years old, defendant ordered herto lay on the couch and he proceeded to remove her pants and underwear. Defendant thenpenetrated her vagina with his penis. Although defendant challenges the veracity of thistestimony given the victim's later recantation, the People presented expert testimony that it is notuncommon for sexually abused children to delay in reporting such incidents or recant after doingso. Moreover, [*2]this victim indicated that defendant threatenedthat she would not walk again if she said anything. Turning to the charge of sexual abuse in thesecond degree (see Penal Law § 130.60 [2]), the 13-year-old victim testified thatfrom June 2005 until March 2006, defendant would often kiss her breasts and touch her vagina,inserting his fingers in her vagina on three occasions. Viewing the evidence in a neutral light andweighing the probative force of the conflicting testimony and the relative strength of anyconflicting inferences which may be drawn, as well as giving due deference to the jury'scredibility assessments, we conclude that the verdicts are not against the weight of the evidence(see People v Bleakley, 69 NY2d 490, 495 [1987]; People v Colvin, 37 AD3d 856, 857 [2007]; People v Frary, 29 AD3d 1223,1225 [2006], lv denied 7 NY3d 788 [2006]).
Additionally, we find no merit to defendant's contention that, given the adolescent age of thevictims, County Court erred in permitting expert testimony regarding child sexual abuseaccommodation syndrome (see e.g.People v Higgins, 12 AD3d 775, 779 [2004], lv denied 4 NY3d 764 [2005];People v Kukon, 275 AD2d 478, 479 [2000], lv denied 95 NY2d 936 [2000]).Furthermore, the clinical social worker, who had never met the victims or reviewed anyinformation pertaining to this case, appropriately testified about the general underlying theory ofsuch syndrome "to explain a victim's behavior that jurors might otherwise misunderstand orperceive as unusual, such as a child's failure to promptly report abuse" (People v Pereau, 45 AD3d 978,980 [2007]; see People v Carroll, 95 NY2d 375, 387 [2000]; People v Weber, 25 AD3d 919,923 [2006], lv denied 6 NY3d 839 [2006]).
We are also unpersuaded by defendant's argument that County Court, while precludingreference to various other convictions, abused its discretion in permitting the People, in the eventdefendant testified, to cross-examine him concerning, among other things, three convictions foraggravated unlicensed operation of a motor vehicle. Despite defendant's characterization of theoffenses as traffic violations, two of the convictions were, in fact, felonies and one was amisdemeanor (see Vehicle and Traffic Law § 511 [2] [b]; [3] [b]). Moreover, areview of the Sandoval hearing establishes that the court appropriately weighed theprobative value of such evidence against the risk of unfair prejudice to defendant in concludingthat such convictions demonstrated defendant's willingness to place his own self-interest abovesociety and, therefore, was probative of his credibility (see People v Sandoval, 34 NY2d371, 375-377 [1974]; People vBoodrow, 42 AD3d 582, 584-585 [2007]; People v Johnson, 24 AD3d 803, 804-805 [2005]).
Finally, defendant's challenge that County Court's Allen charge was coercive was notpreserved for our review by an objection at trial (see CPL 470.05 [2]; People vFrary, 29 AD3d at 1225-1226). Were we to consider the issue, we would find that theAllen charge as a whole was proper (see People v Alvarez, 86 NY2d 761, 763[1995]).
Peters, Carpinello, Rose and Malone Jr., JJ., concur. Ordered that the judgment is affirmed.