| People v Owens |
| 2010 NY Slip Op 01263 [70 AD3d 1469] |
| February 11, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Robbie D.Owens, Appellant. (Appeal No. 1.) |
—[*1] Robbie D. Owens, defendant-appellant pro se. William J. Fitzpatrick, District Attorney, Syracuse (Brenton P. Dadey of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Onondaga County (John J. Brunetti, A.J.),rendered April 20, 2007. The judgment convicted defendant, upon a jury verdict, of rape in thefirst degree (four counts), promoting prostitution in the second degree (two counts), compellingprostitution and endangering the welfare of a child.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting himfollowing a jury trial of, inter alia, four counts of rape in the first degree (Penal Law §130.35 [1]) and, in appeal No. 2, he appeals from an order denying his pro se motion pursuant toCPL 440.10 to vacate that judgment. We granted leave to appeal from the order in appeal No. 2,and we now affirm both the judgment and order.
We reject defendant's contention that a new trial is warranted because the People failed todisclose Brady material in a timely manner. The two documents in question containedprior inconsistent statements of the complainant concerning the dates and locations of thepurported rapes, and they impeached the credibility of a prosecution witness whose testimonywas determinative of guilt or innocence. Thus, the documents in fact constituted exculpatoryevidence subject to disclosure under Brady (see People v Baxley, 84 NY2d 208,213 [1994], rearg dismissed 86 NY2d 886 [1995]; People v Harris, 35 AD3d 1197 [2006]). We conclude, however,that defendant's constitutional right to a fair trial was not violated because the documents weredisclosed to defendant at a time when he had a meaningful opportunity to use them (seePeople v Cortijo, 70 NY2d 868, 870 [1987]; People v Wynn, 55 AD3d 1378, 1379 [2008], lv denied 11NY3d 901 [2008]).
Contrary to defendant's further contention, Supreme Court properly refused to admit in [*2]evidence portions of a police report allegedly containing a priorinconsistent statement of the complainant, inasmuch as defendant failed to lay a properfoundation for the admission of that report (see People v Duncan, 46 NY2d 74, 80-81[1978], rearg denied 46 NY2d 940 [1979], cert denied 442 US 910 [1979],rearg dismissed 56 NY2d 646 [1982]; People v Laurey, 24 AD3d 1107, 1109 [2005], lv denied 6NY3d 815 [2006]). We further conclude that the court properly refused to admit in evidencecertain portions of a medical report that also purportedly contained a prior inconsistent statementof the complainant. "Although defendant claims [that] he was not offering this information for itstruth, but [instead was offering it] to show [that the complainant made the statement], itcontained multiple layers of hearsay, and depended, for its relevancy, on at least some levelbeing true" (People v Alvarez, 44AD3d 562, 564 [2007], lv denied 9 NY3d 1030 [2008]).
We reject defendant's contention that the court erred in allowing a social worker to testify asa rape trauma expert. "The qualification of a witness to testify as an expert rests in the discretionof the court, and its determination will not be disturbed in the absence of serious mistake, anerror of law or an abuse of discretion" (People v Visser, 212 AD2d 1009 [1995]; seePeople v Page, 225 AD2d 831, 833 [1996], lv denied 88 NY2d 883 [1996]).Through her testimony, the social worker established that her "extensive training and experiencerendered her qualified to provide such [testimony]" (People v Lewis, 16 AD3d 173, 173 [2005], lv denied 4NY3d 888 [2005]; see People vBassett, 55 AD3d 1434, 1436 [2008], lv denied 11 NY3d 922 [2009]). In anyevent, " '[p]ractical experience may properly substitute for academic training in determiningwhether an individual has acquired the training necessary to be qualified as an expert' "(People v Paun, 269 AD2d 546 [2000], lv denied 95 NY2d 801 [2000]).
Finally, viewing the evidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d342, 349 [2007]), we conclude that the verdict convicting defendant of those crimes is notagainst the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495[1987]), and we further conclude that defendant was afforded meaningful representation (seegenerally People v Baldi, 54 NY2d 137, 147 [1981]). Present—Scudder, P.J., Centra,Fahey, Carni and Pine, JJ.