| People v Wallace |
| 2009 NY Slip Op 02009 [60 AD3d 1268] |
| March 20, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v KennethWallace, Appellant. |
—[*1] Kenneth Wallace, defendant-appellant pro se. Michael C. Green, District Attorney, Rochester (Elizabeth Clifford of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Elma A. Bellini, A.J.),rendered April 26, 2005. The judgment convicted defendant, upon a jury verdict, of rape in thethird degree (seven counts), criminal sexual act in the third degree, rape in the first degree andassault in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him following a jury trial of,inter alia, seven counts of rape in the third degree (Penal Law § 130.25 [2]). Contrary tothe contention of defendant, Supreme Court properly precluded him from cross-examining hiswife with respect to the child custody petition that she filed against him in Family Court.Evidence concerning the motive of a witness to lie is never collateral and thus is not an impropersubject of cross-examination (seePeople v Corby, 6 NY3d 231, 235-236 [2005]; People v Hudy, 73 NY2d 40,56-57 [1988]; see generally People v Shairzai, 215 AD2d 259, 263 [1995], lvdenied 86 NY2d 802 [1995]). The court, however, may preclude a party fromcross-examining a witness with respect to his or her motive to lie when such questioning calls forspeculation (see People v Wheatley, 211 AD2d 572 [1995], lv denied 85 NY2d916 [1995]; People v Ayers, 161 AD2d 770, 770-771 [1990], lv denied 76 NY2d937 [1990]), and that is the case here.
We agree with defendant that the court erred in precluding him from cross-examining hiswife concerning prior bad acts committed by her that resulted in an adjournment incontemplation of dismissal (see Peoplev Jones, 24 AD3d 815, 816 [2005], lv denied 6 NY3d 777 [2006]; People vBatista, 113 AD2d 890, 891 [1985], lv denied 67 NY2d 648 [1986]). We also agreewith defendant that the court erred in precluding him from cross-examining the victimconcerning a poem that she gave to him in which she expressed her love for him (see generally People v Rosado, 53AD3d 455, 456 [2008], lv denied 11 NY3d 835 [2008]). We nevertheless conclude,however, "that there is no reasonable possibility that [those] error[s] might have contributed todefendant's conviction and that [they were] thus harmless beyond a reasonable doubt"(People v Crimmins, 36 NY2d 230, 237 [1975]). We note in particular that defendantwas permitted to cross-examine his wife concerning her conviction of welfare fraud and tocross-examine the victim with respect to her love for [*2]defendant.
We reject the further contention of defendant that he was denied his right to a fair trial basedon the court's alleged hostility toward defense counsel. We conclude that the court did notdisplay any animosity that it may have had toward defense counsel in the presence of the juryand that its treatment of defense counsel before the jury was fair. In any event, the courtinstructed the jury to disregard any impression it may have formed with respect to the court'sopinion concerning the case, and the jury is presumed to have followed that instruction (see People v Harris, 57 AD3d1523, 1524 [2008]; People vBassett, 55 AD3d 1434, 1435 [2008]; People v Dickerson, 55 AD3d 1276, 1278 [2008], lv denied11 NY3d 924 [2009]). We further conclude that the sentence is not unduly harsh or severe.
We reject the contention of defendant that he was denied effective assistance of counselbased on defense counsel's failure to rebut the expert testimony concerning child sexual abuseaccommodation syndrome (CSAAS) (see generally People v Baldi, 54 NY2d 137, 147[1981]). The expert witness who testified with respect to CSAAS provided only a generalexplanation of the possible behaviors demonstrated by a victim of child sexual abuse, and he didnot impermissibly offer an opinion on the issue whether defendant had committed the sex crimescharged in the indictment (see People v Carroll, 95 NY2d 375, 387 [2000]; People v Stuckey, 50 AD3d 447,449 [2008], lv denied 11 NY3d 742 [2008]; People v Pomales, 49 AD3d 962, 963-964 [2008], lvdenied 10 NY3d 938 [2008]). We also reject the contention of defendant in his pro sesupplemental brief that defense counsel was ineffective in failing to request a Fryehearing with respect to the testimony concerning CSAAS. It is well settled that testimonyconcerning CSAAS "is admissible to assist the jury in understanding the unusual conduct ofvictims of child sexual abuse" where, as here, it is general in nature (Bassett, 55 AD3d at1436; see also People v Herington,11 AD3d 931 [2004], lv denied 4 NY3d 799 [2005]), and "[t]here can be no denialof effective assistance of . . . counsel arising from [defense] counsel's failure to'make a motion or argument that has little or no chance of success' " (People v Caban, 5 NY3d 143, 152[2005], quoting People v Stultz, 2NY3d 277, 287 [2004], rearg denied 3 NY3d 702 [2004]).
Contrary to the contention of defendant in his main brief, he was not denied his right toeffective assistance of counsel based on defense counsel's failure to cross-examine his wifeconcerning his destruction of evidence. Defendant failed to meet his burden of demonstrating"the absence of strategic or other legitimate explanations" for that alleged error (People vRivera, 71 NY2d 705, 709 [1988]; see People v Loret, 56 AD3d 1283 [2008], lv denied 11NY3d 927 [2009]; People vWebster, 56 AD3d 1242 [2008], lv denied 11 NY3d 931 [2009]). Defendantfurther contends that he was denied his right to effective assistance of counsel because defensecounsel's office represented his wife in a prior case. We reject that contention. The recordestablishes that defense counsel was unaware of that prior representation until after thecommencement of trial and that defendant " 'informed the court that he wanted defense counselto continue to represent him . . . [I]t thus cannot be said that defendant was deniedeffective assistance of counsel' " (People v Chenevert, 52 AD3d 1259, 1259 [2008], lvdenied 11 NY3d 786 [2008]; seePeople v Floyd, 45 AD3d 1457, 1459-1460 [2007], lv denied 10 NY3d 811[2008]).
Defendant failed to preserve for our review the contention in his pro se supplemental briefthat the court erred in permitting a nurse practitioner to testify that it is not uncommon for childvictims to delay reporting instances of sexual abuse (see CPL 470.05 [2]), and wedecline to exercise our power to review that contention as a matter of discretion in the interest ofjustice (see CPL 470.15 [6] [a]). Finally, even assuming, arguendo, that defendant wasnot required to preserve for our review his further contention in his pro se supplemental brief thatthe court mishandled two jury notes (see People v Kisoon, 8 NY3d 129, 135 [2007]; cf. People vDeRosario, 81 NY2d 801, 803 [1993]; People v Neal, 268 AD2d 307 [2000], lvdenied 95 NY2d 837 [2000]), we conclude that [*3]defendant's contention lacks merit. The record establishes that thecourt advised defendant of the substance of the two jury notes and gave him an opportunity to beheard before responding to them (see generally People v O'Rama, 78 NY2d 270,277-278 [1991]). Present—Scudder, P.J., Hurlbutt, Centra, Green and Gorski, JJ.