| People v Green |
| 2012 NY Slip Op 01480 [92 AD3d 894] |
| February 21, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Thomas F. Green, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Karla Lato of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County (Kahn, J.),rendered July 16, 2009, convicting him of sodomy in the first degree (two counts), attemptedsodomy in the first degree, sexual abuse in the first degree (two counts), and sexual abuse in thesecond degree (two counts), upon a jury verdict, and imposing sentence. The appeal brings up forreview the denial of that branch of the defendant's omnibus motion which was to dismiss theindictment.
Ordered that the judgment is affirmed.
The defendant was accused of having committed numerous crimes of a sexual nature againstfive young girls: his granddaughter and four of her friends. Most of the crimes were alleged tohave been committed in the defendant's home when other adults were not present, but some werealleged to have been committed in public places. The indictment, as supplemented by the bill ofparticulars, alleged that the crimes were committed during particular seasons in 1998-1999, 2001,and 2003. After a lengthy trial, the defendant was convicted of counts relating to three of the fivecomplainants.
Before sentencing, the defendant filed a motion to set aside the verdict (see CPL330.30 [1]) on the ground, among others, that he had been deprived of his right to effectiveassistance of counsel. In that motion, the defendant cited alleged deficiencies in trial counsel'sperformance that appeared on the face of the record as well as deficiencies that did not appear onthe record. The County Court denied the motion, finding, in part, that it could not adjudicate, inthe context of a CPL 330.30 motion, claims of ineffective assistance of counsel resting onmatters not appearing on the record. The defendant was sentenced to lengthy prison terms. In2009, he filed a motion pursuant to CPL 440.10 to vacate his judgment of conviction in which heclaimed that he had been deprived of his right to effective assistance of counsel. The CountyCourt denied that motion, and the defendant's application for leave to appeal was denied by aJustice of this Court. On this direct appeal from the judgment of conviction, the defendant raisesnumerous claims. None requires reversal, and we affirm the judgment of conviction.[*2]
The defendant contends that the County Court erred bydenying that branch of his omnibus motion which was to dismiss the indictment on the groundthat, even as amplified by the bill of particulars, it did not provide sufficient notice as to when thecrimes were allegedly committed (see CPL 200.50 [6]). Taking into consideration allrelevant circumstances, including, among others, the age of the victims at the times of thecommission of the crimes, the nature of the crimes, and the People's efforts to narrow the timeframes (see People v Watt, 81 NY2d 772, 774-775 [1993]), the time periods alleged werenot so lengthy as to require dismissal (see People v Case, 29 AD3d 706, 706-707 [2006]; People vWilliams, 280 AD2d 563, 564 [2001]; People v O'Keefe, 276 AD2d 647 [2000]; cf. People v Sedlock, 8 NY3d 535,539-540 [2007]; People v Weekes,71 AD3d 1065 [2010]; People vBennett, 57 AD3d 688, 689 [2008]; People v Goulbourne, 199 AD2d 533[1993]).
In addition, the defendant contends that certain testimony relating to the reporting of thecrimes and the course of the police investigation constituted improper bolstering. The defendant,however, failed to preserve this contention for appellate review (see CPL 470.05 [2]; People v Bevans, 84 AD3d 827[2011]; People v Rich, 78 AD3d1200, 1202 [2010]; People vSantiago, 16 AD3d 600 [2005]). In any event, the testimony did not, to the extent it mayhave gone beyond the scope of what was proper (cf. People v Bernardez, 85 AD3d 936, 938 [2011]), deprive thedefendant of a fair trial. The defendant's contention that his trial counsel was ineffective forfailing to object to the admission of the aforementioned testimony is without merit (seePeople v Cass, 18 NY3d 553, 564 [2012]).
Moreover, the County Court did not err in permitting expert testimony about child sexualabuse accommodation syndrome. That testimony was properly offered for the purpose ofproviding an explanation for the post-crime behavior of the complainants that might haveappeared to be unusual or which the jurors may not have otherwise understood (see People v Spicola, 16 NY3d441, 465 [2011], cert denied 565 US —, 132 S Ct 400 [2011]; People vCarroll, 95 NY2d 375, 387 [2000]). Further, the defendant has failed to support his claimthat child sexual abuse accommodation syndrome has been discredited within the scientificcommunity (see People v Spicola, 16 NY3d at 465; cf. Gersten v Senkowski, 426F3d 588, 611 [2005], cert denied sub nom. Artus v Gersten, 547 US 1191 [2006]).
Finally, the County Court correctly held that it lacked the authority to consider facts notappearing on the record in determining the defendant's motion pursuant to CPL 330.30 (1) to setaside the verdict on the ground, inter alia, of ineffective assistance of counsel (see People v Rohlehr, 87 AD3d603, 604 [2011]; People vMiller, 68 AD3d 1135 [2009]). Accordingly, the County Court properly denied thatmotion. Balkin, J.P., Leventhal, Belen and Roman, JJ., concur.