| People v Piedra |
| 2011 NY Slip Op 06357 [87 AD3d 706] |
| August 23, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Johnny Piedra, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J.Caferri, and Merri Turk Lasky of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Holder, J.),rendered February 1, 2010, convicting him of criminal sexual act in the first degree, sexual abusein the second degree, endangering the welfare of a child (two counts), and sexual abuse in thefirst degree (two counts), upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, the Supreme Court did not err in permitting theprosecution to call an expert witness, a psychologist, to testify about, inter alia, intrafamily rapetrauma syndrome. The testimony was properly admitted "to explain behavior of . . .victim[s] that might appear unusual or that jurors may not be expected to understand" (Peoplev Carroll, 95 NY2d 375, 387 [2000]; see People v Rich, 78 AD3d 1200, 1202 [2010]). The expert "spokeabout victims in general and never opined that the defendant committed the crimes, that thevictim[s] w[ere] sexually abused, or that the victim[s'] specific actions and behavior wereconsistent with abuse" (People v Rich, 78 AD3d at 1202; see People v Carroll, 95NY2d at 387; People v Taylor, 75 NY2d 277, 292-293 [1990]).
The Supreme Court also did not err in granting the prosecutor's application to preclude thedefendant from questioning one of the complainants about an entry in her diary indicating that aclassmate had sexually abused her. The defendant did not make a showing that the circumstancesor manner of the assault described in the diary "were such as to suggest a pattern castingsubstantial doubt on the validity of the charges made by the victim in this instance or were suchas otherwise to indicate a significant probative relation to such charges" (People vMandel, 48 NY2d 952, 953 [1979]; cf. People v Hunter, 11 NY3d 1, 6 [2008]). Moreover, there is noindication in the record that the complainant reported the incident described in the diary toanyone or confirmed that it occurred (see People v Gunther, 67 AD3d 1477, 1478 [2009]).
The defendant's contention that the Supreme Court erred in failing to give a missing witnesscharge is unpreserved for appellate review (see CPL 470.05 [2]; People v Hernandez, 74 AD3d839, 840 [2010]; People vJacobs, 65 AD3d 594, 596 [2009]) and, in any event, is without merit (see People[*2]v Gonzalez, 68 NY2d 424, 427 [1986]; People v Rodriguez, 77 AD3d975, 976 [2010]).
The defendant's contention that the Supreme Court's interested witness charge to the juryunfairly singled him out, disparaged his credibility, and undermined the presumption ofinnocence is unpreserved for appellate review (see CPL 470.05 [2]; People vPatterson, 39 NY2d 288, 294-295 [1976], affd 432 US 197 [1977]; People v Jean-Baptiste, 37 AD3d852, 852-853 [2007]). In any event, "[t]he jury charge contained no language stating that thedefendant had 'a motive to lie or deep personal interest in the case,' and nothing in the chargeassumed or suggested that he was guilty or shifted the burden of proof" (People v Brokenbough, 52 AD3d525, 525 [2008], quoting People vBlake, 39 AD3d 402, 403 [2007]; cf. People v Ochs, 3 NY2d 54, 56 [1957];United States v Brutus, 505 F3d 80, 87-88 [2007]; United States v Gaines, 457F3d 238, 244-250 [2006]). Moreover, the charge was not unbalanced (see People v Campbell, 68 AD3d890, 891 [2009]; see also People vVarughese, 21 AD3d 1126, 1128 [2005]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).Rivera, J.P., Covello, Florio and Lott, JJ., concur.