| People v Stuckey |
| 2008 NY Slip Op 03319 [50 AD3d 447] |
| April 15, 2008 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Anderson Stuckey, Appellant. |
—[*1] Robert T. Johnson, District Attorney, Bronx (Bryan C. Hughes of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (David Stadtmauer, J.), rendered January 6, 2006,convicting defendant, after a jury trial, of course of sexual conduct against a child in the firstdegree, criminal contempt in the first degree (five counts), criminal contempt in the seconddegree, and tampering with a witness in the third degree (two counts), and sentencing him, as asecond felony offender, to an aggregate term of 16 years, unanimously affirmed.
Defendant was convicted of having sexual intercourse with his daughter for a period ofapproximately two years that began when she was seven years old. In light of the child victim'syoung age and expressed fear of retribution if she disclosed the abuse, her report of this conduct,made approximately three days following the last incident, constituted a prompt outcry whichwas properly admitted under that exception to the hearsay rule (see People v Vanterpool,214 AD2d 429 [1995], lv denied 86 NY2d 875 [1995]).
"An outcry of rape is prompt if made at the first suitable opportunity and is a relative conceptdependent on the facts." (People vShelton, 1 NY3d 614, 615 [2004] [internal quotation marks and citations omitted].) Wereject defendant's argument that the prompt outcry exception is inapplicable to an outcry made,as here, at the end of a course of sexual conduct. This case is illustrative of how this hearsayexception might apply to such a case. The child's fear of her father was finally overcome whenher teacher taught a class on how to deal with inappropriate touching. The child began cryingduring the class, asked to speak to the teacher privately, and immediately reported defendant'scourse of conduct to school personnel. While other evidence tended to explain the reason for thelong delay in reporting, without the outcry evidence the jury would have been left to speculate asto what caused the ultimate revelation of the abuse. Such speculation would have tended to castunfair doubt on the credibility of the People's case.
By failing to object, or by failing to make specific objections, defendant failed to preserveany of his complaints about the alleged multiplicity of prompt outcry witnesses, the specifics oftheir testimony, or the prosecutor's summation comments on this subject, and we decline toreview them in the interest of justice. As an alternative holding, we also reject them on themerits.
The court properly exercised its discretion in admitting expert testimony on child sexual[*2]abuse accommodation syndrome (see People vCarroll, 95 NY2d 375, 387 [2000]). This testimony was not rendered cumulative orirrelevant by the child's own testimony explaining her delay in reporting her father's crimes;jurors might still have found the delay difficult to understand. The expert never gave any opinionas to whether the child had been abused, and there was nothing unduly prejudicial about hertestimony. With respect to defendant's claim of unfair surprise, we note that defendant neverrequested any particular amount of time to prepare for the expert's testimony, and has notestablished that he was prejudiced in any manner by the People's midtrial decision to call such anexpert.
Defendant's challenge to a portion of the examining physician's testimony is unpreserved andwe decline to review it in the interest of justice. As an alternative holding, we find that any errorwas harmless in light of the overwhelming evidence of defendant's guilt including, among otherthings, extensive evidence of witness tampering, which evinced defendant's consciousness ofguilt. Concur—Mazzarelli, J.P., Andrias, Friedman and Sweeny, JJ.