| People v Bassett |
| 2008 NY Slip Op 07729 [55 AD3d 1434] |
| October 10, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v BradleyBassett, Appellant. |
—[*1] Frank J. Clark, District Attorney, Buffalo (Donna A. Milling of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Amy J. Fricano, J.), renderedOctober 25, 2006. The judgment convicted defendant, upon a jury verdict, of course of sexualconduct against a child in the second degree (two counts) and endangering the welfare of a child.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him, after a jury trial, of, inter alia,two counts of course of sexual conduct against a child in the second degree (Penal Law §130.80 [1] [a], [b]), defendant contends that, after discharging a juror, Supreme Court erred infailing to examine the remaining jurors on an individual basis to determine whether they hadbeen prejudiced by certain disclosures made by the discharged juror. He further contends that thecourt erred in denying his motion for a mistrial on that ground. We conclude that the court's useof paper ballots to inquire whether the impartiality of any of the remaining jurors had beenaffected by statements of the discharged juror and whether they wished to speak to the courtindividually about the incident was "sufficient to protect the defendant's right to a fair trial"(People v Knorr, 284 AD2d 411, 412 [2001], lv denied 96 NY2d 903 [2001]),and, in any event, was the functional equivalent of interviewing each juror individually (seePeople v Buford, 69 NY2d 290, 299 [1987]). Further, the court gave a curative instructiondirecting the jury to reach its verdict based solely on the evidence at trial and not to consider anyexternal influences, and the jury is presumed to have followed the court's instructions (seegenerally People v Hall, 53 AD3d 1080, 1083 [2008]). Thus, we conclude that the court didnot abuse its discretion in denying defendant's motion for a mistrial (see generally People vToland, 2 AD3d 1053, 1055 [2003], lv denied 2 NY3d 808 [2004]).
Defendant further contends that the verdict with respect to the counts charging the violationof Penal Law § 130.80 (1) (a) and (b) is against the weight of the evidence because thetestimony of the victim with respect to those counts was incredible as a matter of law. We rejectthat contention. It cannot be said that the testimony of the victim was "impossible of beliefbecause it [was] manifestly untrue, physically impossible, contrary to experience, orself-contradictory" (People v Ptak, 37 AD3d 1081, 1082 [2007], lv denied 8NY3d 949 [2007] [internal quotation marks omitted]) and, indeed, we note that her testimonywas corroborated by other [*2]witnesses. With respect to thetestimony of the victim regarding count two, the fact that her testimony concerning the timeframe in which defendant ceased his sexual contact with her was vague and contradictory attimes does not render her testimony incredible as a matter of law (see People v Harp, 20AD3d 672, 673 [2005], lv denied 5 NY3d 852 [2005]). Thus, according great deferenceto the jury's resolution of credibility issues, we conclude that the verdict is not against the weightof the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]).
Contrary to the further contention of defendant, he was not denied a fair trial when the courtadmitted testimony that he fondled himself in the presence of a friend of the victim's sister whilethe friend was spending the night at the victim's house. That evidence was admissible tocomplete the narrative of the events charged in the indictment (see People v Till, 87NY2d 835, 836-837 [1995]; People v Gines, 36 NY2d 932, 932-933 [1975]), and it alsoprovided necessary background information (see People v Tarver, 2 AD3d 968 [2003]).The court also properly admitted the testimony of the victim concerning defendant's allegedassault of her mother. "Prior and concurrent threats and violence to the victim's family. . . are admissible . . . to explain the victim's failure to reveal theongoing sexual assaults" (People v Greene, 306 AD2d 639, 642 [2003], lv denied100 NY2d 594 [2003]; see People v Bennett, 52 AD3d 1185, 1187 [2008]). Here, thetestimony of the victim that defendant had assaulted her mother was admissible for the purposeof explaining the victim's delay in reporting the ongoing sexual conduct (see Bennett, 52AD3d at 1187; Greene, 306 AD2d at 642). We note in any event that "the court providedthe jury with appropriate limiting instructions immediately after the challenged testimony waselicited," thus minimizing any potential prejudice to defendant (People v Johnson, 45AD3d 606 [2007], lv denied 9 NY3d 1035 [2008]; see People v Rhymes, 149AD2d 906 [1989]).
We reject defendant's further contention that the court erred in allowing the People to presentthe testimony of a witness concerning child sexual abuse accommodation syndrome (CSAAS)without first conducting a Frye hearing. We note at the outset that, contrary to defendant'scontention, the experience, training and education of the witness adequately qualified him totestify as an expert on CSAAS. With respect to the merits of defendant's contention that aFrye hearing was required, it is well settled that expert testimony concerning CSAAS isadmissible to assist the jury in understanding the unusual conduct of victims of child sexualabuse provided that, as here, the testimony is general in nature and does "not attempt toimpermissibly prove that the charged crimes occurred" (People v Carroll, 95 NY2d 375,387 [2000]; see People v Gillard, 7 AD3d 540 [2004], lv denied 3 NY3d 659[2004]; People v Doherty, 305 AD2d 867, 868 [2003], lv denied 100 NY2d 580[2003]; People v Miles, 294 AD2d 930 [2002], lv denied 98 NY2d 678 [2002]),and a "Frye hearing was unnecessary [in this case] because the expert's testimony did notinvolve novel scientific evidence" (People v Middlebrooks, 300 AD2d 1142, 1143[2002], lv denied 99 NY2d 630 [2003]).
Contrary to the further contention of defendant, the court properly denied his request for thevictim's counseling records and his request that the victim's counselor testify at trial. Anexception to the general rule that a licensed social worker shall not be required to disclose acommunication by his or her client in the course of the professional employment is "where theclient is a child under the age of sixteen and the information acquired by such social workerindicates that the client has been the victim or subject of a crime . . . thecommission of [which] is a subject of inquiry" (CPLR 4508 [a] [3]). Here, the court determinedfollowing an in camera inspection of the victim's counseling records that they did not relate to thecrimes committed by defendant (see generally People v Tissois, 72 NY2d 75 [1988]).Further, "[a] request to examine privileged records for the purpose of impeaching. . . [the] general credibility [of a witness] constitutes an impermissible use ofconfidential material" (People v Tissois, 131 AD2d 612, 614 [1987], affd 72NY2d 75 [1988]), and thus the court properly denied defendant's request to obtain either thevictim's counseling records or the testimony of the victim's counselor for impeachment purposes(see People v Beard, 1 AD3d 1052, 1053 [2003], lv denied 4 NY3d 741 [2004];see generally People v [*3]Gissendanner, 48 NY2d 543,549-550 [1979]).
We reject the further contention of defendant that he received ineffective assistance ofcounsel. Defendant contends that defense counsel should have sought dismissal of the indictmentbased on the overly broad response in the People's bill of particulars with respect to the timeframes in which the crimes were allegedly committed by defendant. In order to establish thatdefense counsel's failure to make a particular pretrial motion constituted ineffective assistance ofcounsel (see generally People v Rivera, 71 NY2d 705, 709 [1988]; People vMarcial, 41 AD3d 1308 [2007], lv denied 9 NY3d 878 [2007]), "defendant mustshow that the particular motion, if made, would have been successful and that defense counsel'sfailure to make that motion deprived him of meaningful representation" (Marcial, 41AD3d at 1308; see People v Matthews, 27 AD3d 1115, 1116 [2006]). Defendant failed tomake that showing herein, inasmuch as the crime of course of sexual conduct against a child is acontinuing crime "permitting an allegation that the offenses occurred 'over a significant period oftime' " (People v Weber, 25 AD3d 919, 923 [2006], lv denied 6 NY3d 839[2006], quoting People v Shack, 86 NY2d 529, 540 [1995]; see People v Green,17 AD3d 1076 [2005], lv denied 5 NY3d 789 [2005]). Defense counsel also was notineffective for failing to move for a trial order of dismissal on the ground of legal insufficiency atthe close of the People's case, thereby failing to preserve that issue for our review. "Deprivationof appellate review . . . does not per se establish ineffective assistance of counsel"(People v Acevedo, 44 AD3d 168, 173 [2007], lv denied 9 NY3d 1004 [2007])but, rather, a defendant must also show that his or her contention would be meritorious uponappellate review (id. at 173-174). Defendant failed to make that showing because weconclude that the conviction is indeed supported by legally sufficient evidence (see generallyBleakley, 69 NY2d at 495). We also reject defendant's contention that defense counsel wasineffective in failing to conduct an adequate cross-examination of the People's expert witness andto challenge his qualifications or familiarity with CSAAS. "Speculation that a more vigorouscross-examination might have [undermined the credibility of a witness] does not establishineffectiveness of counsel" (People v Adams, 247 AD2d 819, 819 [1998], lv denied91 NY2d 1004 [1998]; see People v Edsall, 37 AD3d 1100, 1101 [2007], lvdenied 9 NY3d 843 [2007]; see generally People v Turner, 5 NY3d 476, 480 [2005]).Viewing the evidence, the law, and the circumstances of this case, in totality and as of the time ofthe representation, we conclude that defense counsel provided meaningful representation (seePeople v Baldi, 54 NY2d 137, 147 [1981]). The sentence is not unduly harsh or severe.
Finally, we note that the certificate of conviction incorrectly reflects that defendant wasconvicted of two counts of sexual conduct against a child in the first degree, and it must thereforebe amended to reflect that he was convicted of two counts of course of sexual conduct against achild in the second degree (see generally People v Martinez, 37 AD3d 1099, 1100[2007], lv denied 8 NY3d 947 [2007]). Present—Smith, J.P., Lunn, Fahey andPeradotto, JJ.