| People v Gunther |
| 2009 NY Slip Op 08656 [67 AD3d 1477] |
| November 20, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v George D.Gunther, Appellant. |
—[*1] Donald H. Dodd, District Attorney, Oswego (Gregory S. Oakes of counsel), forrespondent.
Appeal from a judgment of the Oswego County Court (James W. McCarthy, J.), renderedDecember 19, 2007. The judgment convicted defendant, upon a jury verdict, of course of sexualconduct against a child in the first degree, sodomy in the first degree (two counts), rape in thefirst degree (three counts), sexual abuse in the first degree (five counts) and endangering thewelfare of a child.
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawby reversing that part convicting defendant of sexual abuse in the first degree under the fifthcount of the indictment and dismissing that count of the indictment and as modified the judgmentis affirmed.
Memorandum: On appeal from a judgment convicting him, following a jury trial, of varioussex crimes committed by defendant against three children, defendant contends that theconviction is not supported by legally sufficient evidence. Defendant preserved his contentionfor our review with respect to seven counts of the indictment, but we conclude that hiscontention lacks merit with respect to those counts (see generally People v Bleakley, 69NY2d 490, 495 [1987]). We agree with defendant, however, that the judgment must be modifiedby reversing that part convicting defendant of sexual abuse in the first degree under the fifthcount of the indictment, charging defendant with sexual abuse by touching the vagina of one ofthe victims with his penis. There was no evidence presented at trial that defendant touched thatvictim's vagina with his penis. Instead, the People adduced evidence that, on two occasionsduring the relevant time frame, defendant touched that victim's leg and buttocks and rubbed hispenis against her back. It is well established that a defendant cannot be convicted of a crimebased on evidence of an "uncharged theory" (People v Grega, 72 NY2d 489, 496[1988]; see People v Greaves, 1 AD3d 979 [2003]; see generally People vBradford, 61 AD3d 1419, 1420-1421 [2009]). Defendant was not required to preserve hiscontention for our review inasmuch as "[t]he right of an accused to be tried and convicted ofonly those crimes and upon only those theories charged in the indictment is fundamental andnonwaivable" (People v Rubin, 101 AD2d 71, 77 [1984], lv denied 63 NY2d 711[1984]). Viewing the evidence in light of the elements of the remaining crimes as charged to thejury (see People v Danielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict isnot against the weight of the evidence (see generally Bleakley, 69 NY2d at 495).[*2]
County Court did not err in admitting the testimony ofthe expert concerning Child Sexual Abuse Accommodation Syndrome. The testimony of theexpert was admissible for the purpose of "explain[ing] behavior of a victim that might appearunusual or that jurors may not be expected to understand" (People v Carroll, 95 NY2d375, 387 [2000], citing People v Taylor, 75 NY2d 277 [1990]). The court also did not errin precluding defendant from presenting evidence that two of the victims had made prior claimsof sexual assault. Although the testimony of the two victims included a phrase that generallyreferred to a molester, that testimony does not rise to the level of a formal complaint, and therewas no evidence of a formal complaint of sexual assault made by those victims (see People vMandel, 48 NY2d 952 [1979], cert denied and appeal dismissed 446 US 949 [1980],reh denied 448 US 908 [1980]; People v Breheny, 270 AD2d 926 [2000], lvdenied 95 NY2d 851 [2000]). Finally, the sentence is not unduly harsh or severe.Present—Hurlbutt, J.P., Martoche, Smith, Carni and Pine, JJ.