| People v Martinez |
| 2009 NY Slip Op 09859 [68 AD3d 1757] |
| December 30, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Jesus O.Martinez, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Elizabeth Clifford of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Stephen R. Sirkin, A.J.),rendered May 17, 2005. The judgment convicted defendant, upon a jury verdict, of sodomy inthe first degree (three counts) and sexual abuse in the first degree.
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 ofthree counts of sodomy in the first degree (Penal Law former § 130.50 [3]) and one countof sexual abuse in the first degree (§ 130.65 [3]). Defendant failed to preserve for ourreview his contention that he was denied a fair trial based on cumulative error, i.e., the admissionin evidence of testimony concerning child sexual abuse accommodation syndrome and theprosecutor's reference to that testimony on summation, which allegedly constituted prosecutorialmisconduct (see CPL 470.05 [2]). In any event, defendant's contention lacks merit. Thetestimony of the expert was properly admitted because he testified only in general terms withrespect to the reasons for a child's failure to report incidents of sexual abuse immediately, and hedid not render an opinion on the issue whether the victims in this case were in fact sexuallyabused (see People v Carroll, 95 NY2d 375, 387 [2000]; People v Bassett, 55 AD3d 1434,1436-1437 [2008], lv denied 11 NY3d 922 [2009]; People v Herington, 11 AD3d 931 [2004], lv denied 4NY3d 799 [2005]). Inasmuch as the testimony was properly admitted, the prosecutor's commentson summation concerning that testimony constituted fair comment on the evidence (seegenerally People v Tolliver, 267 AD2d 1007 [1999], lv denied 94 NY2d 908[2000]).
Defendant further contends that Supreme Court erred in refusing to suppress his statement tothe police because the People failed to establish at the suppression hearing that he was properlyadvised of his Miranda rights. We reject that contention. According to the evidencepresented at the suppression hearing, the police officer who administered the Mirandawarnings to defendant "was sufficiently trained and experienced in speaking and writing theSpanish language to enable him to properly advise the defendant of his Miranda rights"(People v Turcios-Umana, 153 AD2d 707, 707 [1989], lv denied 75 NY2d 777[1989]; see People v Restrepo-Velez, 156 AD2d 488, 489 [1989]). The officer testifiedthat he has spoken Spanish for his entire life, and he testified with respect to the Englishtranslation of the Spanish Miranda warnings that were administered to defendant. Thetranslation establishes that the Miranda warnings in Spanish were substantively the sameas those in English (see People v Castillo, 277 AD2d 129, 130 [2000], lv denied96 NY2d 757 [2001]; People v Jordan, [*2]110 AD2d855 [1985]). Present—Centra, J.P., Peradotto, Green and Pine, JJ.