| People v Simmons |
| 2012 NY Slip Op 01831 [93 AD3d 739] |
| March 13, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Tyrone Simmons, Appellant. |
—[*1] Janet DiFiore, District Attorney, White Plains, N.Y. (Maria I. Wager, Lois Cullen Valerio,and Richard Longworth Hecht of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Westchester County(Wetzel, J.), rendered October 16, 2009, convicting him of sexual abuse in the first degree (threecounts), upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's contention that the evidence was legally insufficient to support hisconviction of sexual abuse in the first degree under count eight of the indictment is unpreservedfor appellate review (see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484, 492 [2008]; People vPadro, 75 NY2d 820, 821 [1990]). In any event, viewing the evidence in the light mostfavorable to the People (see People v Contes, 60 NY2d 620, 621 [1983]), we find that itwas legally sufficient to support his conviction under that count. Moreover, upon ourindependent review pursuant to CPL 470.15 (5), we are satisfied that the verdict of guilt on thatcount was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).
The Supreme Court did not improvidently exercise its discretion in admitting into evidencethe testimony of an expert witness that the lack of physical trauma to the complainant was notinconsistent with the occurrence of a forcible sexual assault (see People v Menendez, 50 AD3d 1061, 1061-1062 [2008]; People v Heer, 12 AD3d 1154,1155 [2004]). That testimony, fairly interpreted, did not suggest or imply that the lack of traumawas evidence that the complainant was being truthful or that the expert believed that thecomplainant was being truthful. Rather, it was admitted, properly, to assist the jury indetermining the significance of the absence of physical trauma (cf. People v McDaniel,81 NY2d 10, 16-17 [1993]; People v Carroll, 300 AD2d 911, 914 [2002]). Further, thedefendant elicited testimony from the expert about the incidence of false claims of sexual assault,and he did not move to strike that testimony, so he has no basis to complain about it now (see People v Stalter, 77 AD3d 776,777 [2010]; People v Fraley, 183 AD2d 781, 782 [1992]; People v Concepcion,175 AD2d 324, 326 [1991]).
The Supreme Court did not err in imposing consecutive sentences on the sexual abuse in thefirst degree convictions under counts nine and ten of the indictment, inasmuch as the evidence[*2]at trial demonstrated that the two offenses were committedthrough separate and distinct acts (seePeople v Rodriguez, 49 AD3d 433, 435 [2008]; People v Wynn, 35 AD3d 283, 284 [2006]).
The defendant's remaining contentions are without merit. Balkin, J.P., Eng, Hall and Sgroi,JJ., concur.