| People v Spicola |
| 2009 NY Slip Op 03344 [61 AD3d 1434] |
| April 24, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v MichaelSpicola, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Shawn P. Hennessy of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Michael L. D'Amico, J.), renderedAugust 9, 2007. The judgment convicted defendant, upon a jury verdict, of sodomy in the firstdegree (six counts), sexual abuse in the first degree (three counts) and endangering the welfare ofa 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 sixcounts of sodomy in the first degree (Penal Law former § 130.50 [3]), three counts ofsexual abuse in the first degree (§ 130.65 [3]) and one count of endangering the welfare ofa child (§ 260.10 [1]). We reject defendant's contentions that County Court erred inadmitting expert testimony concerning child sex abuse accommodation syndrome (see Peoplev Carroll, 95 NY2d 375, 387 [2000]; People v Miles, 294 AD2d 930 [2002], lvdenied 98 NY2d 678 [2002]), as well as statements made by the victim concerning theincidents at issue to a nurse practitioner that were relevant to the victim's diagnosis and treatment(see People v White, 306 AD2d 886 [2003], lv denied 100 NY2d 625 [2003]).Contrary to defendant's further contention, "[t]he court properly precluded defendant fromintroducing evidence concerning his reputation for truth and veracity, because that evidence didnot relate to a trait involved in the charges of . . . sodomy, sexual abuse orendangering the welfare of a child" (People v Fanning, 209 AD2d 978, 978 [1994],lv denied 85 NY2d 908 [1995]; see People v Renner, 269 AD2d 843, 844[2000]).
Defendant failed to preserve for our review his challenge to the court's preliminary juryinstructions (see CPL 470.05 [2]; People v Giddens, 202 AD2d 976 [1994],lv denied 83 NY2d 871 [1994]), and we decline to exercise our power to review thatchallenge as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]).Considering all of the relevant circumstances, we conclude that the time frames set forth in theindictment were sufficiently specific to enable defendant to prepare a defense (see People v Furlong, 4 AD3d839, 840-841 [2004], lv denied 2 NY3d 739 [2004]; see generally People vWatt, 81 NY2d 772, 774-775 [1993]). We reject the contention of defendant that defensecounsel was ineffective in failing to preserve certain contentions for our review. " 'Deprivation ofappellate review . . . does not per se establish ineffective assistance of counsel'. . . but, rather, a defendant must [*2]also show thathis or her contention would be meritorious upon appellate review," and defendant failed to makethat showing (People v Bassett, 55AD3d 1434, 1438 [2008], lv denied 11 NY3d 922 [2009]). Viewing the evidence inlight of the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), and accordinggreat deference to the jury's resolution of credibility issues, we conclude that the verdict is notcontrary to the weight of the evidence (see generally People v Bleakley, 69 NY2d 490,495 [1987]). The general motion by defendant for a trial order of dismissal at the close of proofdid not preserve for our review his challenge to the legal sufficiency of the evidence (seePeople v Gray, 86 NY2d 10, 19 [1995]). Finally, the sentence is not unduly harsh or severe.Present—Scudder, P.J., Martoche, Fahey, Peradotto and Green, JJ.