| People v Lupo |
| 2012 NY Slip Op 01382 [92 AD3d 1136] |
| February 23, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Anthony C.Lupo, Sr., Appellant. |
—[*1] Gwen Wilkinson, District Attorney, Ithaca (Andrew M. McElwee of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the County Court of Tompkins County (Rowley,J.), rendered June 5, 2009, (1) upon a verdict convicting defendant of the crimes of course ofsexual conduct against a child in the first degree and course of sexual conduct against a child inthe second degree, and (2) convicting defendant upon his plea of guilty of the crime of course ofsexual conduct against a child in the second degree.
After a trial addressing defendant's inappropriate touching of two young female relatives, ajury found him guilty of course of sexual conduct against a child in the first degree regarding onevictim and course of sexual conduct against a child in the second degree regarding the othervictim. In satisfaction of a separate indictment regarding a third victim, defendant entered anAlford plea to course of sexual conduct against a child in the second degree. CountyCourt imposed a sentence of 10 years in prison followed by 20 years of postrelease supervisionfor course of sexual conduct against a child in the first degree, a consecutive term of seven yearsin prison and 10 years of postrelease supervision for the tried count of course of sexual conductagainst a child in the second degree and, pursuant to his plea agreement, a concurrent term of fiveyears in prison and 10 years of postrelease supervision for the other count of course of sexualconduct against a child in the second degree. Defendant appeals.[*2]
The conviction for course of sexual conduct against achild in the first degree is supported by legally sufficient evidence.[FN*]As relevant here, a person is guilty of that charge "when, over a period of time not less than threemonths in duration . . . he or she engages in two or more acts of sexual conduct,which includes at least one act of . . . oral sexual conduct . . . with achild less than [11] years old" (Penal Law § 130.75 [1] [a]). The victim who was thesubject of this charge testified that she visited defendant's home on certain holidays and severaltimes each summer. She testified that during those visits between August 1, 1996 and when sheturned 11 years old in February 1999, defendant touched her breasts and vagina both over andunder her clothing numerous times. She further testified that on one occasion when defendanttook her swimming in the summertime, he kissed her vagina. This testimony established morethan two acts of sexual conduct and an act of oral sexual conduct over a time period longer thanthree months in duration.
The only substantial question was whether the People proved that the oral sexual conductoccurred after the August 1, 1996 effective date of the statute, as prosecution is not permitted foroffenses occurring prior to that date (see L 1996, ch 122, § 7). Defendant points tothe victim's testimony that this incident occurred in the "[s]ummertime" when she was "[r]oughlyeight or nine" years old. This testimony alone would not be sufficient, as the victim was eightyears old in the summer of 1996, leaving open the possibility that this incident occurred prior tothe statute's August 1, 1996 effective date. She later responded affirmatively, however, whenspecifically asked whether the incident where defendant kissed her vagina occurred during thetime period between August 1, 1996 and the time that she turned 11 years old. Thus, the victim'stestimony constituted legally sufficient evidence to establish all of the elements of course ofsexual conduct against a child in the first degree (see People v Reynolds, 81 AD3d 1166, 1166-1167 [2011], lvdenied 16 NY3d 898 [2011]; Peoplev Nowinski, 36 AD3d 1082, 1083 [2007], lv denied 8 NY3d 989 [2007]; People v Frary, 29 AD3d 1223,1224-1225 [2006], lv denied 7 NY3d 788 [2006]).
County Court did not assume the role of an advocate by posing questions to witnesses. Thecourt "is permitted to raise matters on its own initiative in order to elicit significant facts, clarifyor enlighten an issue or to facilitate the orderly and expeditious progress of the trial" (Peoplev Tucker, 140 AD2d 887, 891 [1988], lv denied 72 NY2d 913 [1988]; see Peoplev Yut Wai Tom, 53 NY2d 44, 57 [1981]). Here, the court did not err by asking a fewquestions of the People's expert to determine the relevancy of her potential testimony(compare People v Ahearn, 88 AD2d 691, 692 [1982]). Additionally, the court did notexceed its authority by seeking to clarify the age of one victim at the time of a particular incident.Thus, defendant was not deprived of a fair trial when the court questioned some witnesses(see People v Yut Wai Tom, 53 NY2d at 57; People v Parrotte, 34 AD3d 921, 922 [2006]).
Given a trial court's "considerable discretion in determining the admissibility of experttestimony" (People v Lamont, 21AD3d 1129, 1132 [2005], lv denied 6 NY3d 835 [2006]), we cannot say that CountyCourt erred in permitting testimony on child sexual abuse [*3]accommodation syndrome by a licensed clinical social worker whois the executive director of an organization that assists victims of, among other things, sexualabuse (see People v Pomales, 49AD3d 962, 963-964 [2008], lv denied 10 NY3d 938 [2008]). That expert, who hadnever met the victims, testified generally about the syndrome, did not bolster the victims'testimony and did not attempt to prove that defendant committed the charged crimes (see People v Gregory, 78 AD3d1246, 1247 [2010], lv denied 16 NY3d 831 [2011]; People v Pereau, 45 AD3d 978,980 [2007], lv denied 9 NY3d 1037 [2008]; compare People v Taylor, 75 NY2d277, 293 [1990]). Hence, the expert testimony was permissible.
Rose, J.P., Malone Jr., Stein and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.
Footnote *: Defendant's brief does notaddress in any way the count to which he pleaded guilty, or the sufficiency of the evidenceconcerning the other count of which he was convicted after trial. Thus, he has abandoned anyarguments on those issues (see People vWalrad, 22 AD3d 883 n [2005]).