| People v Filer |
| 2012 NY Slip Op 05448 [97 AD3d 1095] |
| July 6, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York,Respondent, v Donald C. Filer, Appellant. |
—[*1] Michael J. Violante, District Attorney, Lockport (Thomas H. Brandt of counsel), forrespondent.
Appeal from a judgment of the Niagara County Court (Richard C. Kloch, Sr., A.J.), renderedAugust 7, 2008. The judgment convicted defendant, upon a jury verdict, of course of sexualconduct against a child in the first degree, criminal sexual act in the first degree, predatory sexualassault against a child, and sexual abuse in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawby reversing that part convicting defendant of criminal sexual act in the first degree under counttwo of the indictment and dismissing that count of the indictment without prejudice to the Peopleto re-present any appropriate charges under that count of the indictment to another grand jury andas modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofcourse of sexual conduct against a child in the first degree (Penal Law § 130.75 [1] [a]),criminal sexual act in the first degree (§ 130.50 [3]), predatory sexual assault against achild (§ 130.96), and sexual abuse in the first degree (§ 130.65 [3]).
Defendant failed to preserve for our review his contention that he was deprived of his right toa public trial when County Court ordered his friend to leave the courtroom (see People v Hamilton, 45 AD3d1396 [2007], lv denied 10 NY3d 765 [2008]). In any event, that contention iswithout merit inasmuch as the record establishes that the court acted within its discretion in orderto "preserve order and decorum in the courtroom" (People v Colon, 71 NY2d 410, 416[1988], cert denied 487 US 1239 [1988]).
Defendant also failed to preserve for our review his contention that counts one, four and fiveof the indictment are facially duplicitous (see People v Becoats, 71 AD3d 1578, 1579 [2010], affd 17NY3d 643 [2011], cert denied 566 US —, 132 S Ct 1970 [2012]; People v Sponburgh, 61 AD3d1415, 1416 [2009], lv denied 12 NY3d 929 [2009]). We decline to exercise ourpower to review defendant's contention as a matter of discretion in the interest of justice(see CPL 470.15 [6] [a]). Although count two is not duplicitous on its face inasmuch as italleges a single act (see CPL 200.50 [3]-[7]; People v Keindl, 68 NY2d 410,417-418 [1986]), we agree with defendant that it was rendered duplicitous by the testimony ofthe victim tending to establish the commission of multiple [*2]criminal acts during the period of time specified therein (seePeople v McNab, 167 AD2d 858 [1990]). "Because defendant's right to be tried andconvicted of only those crimes charged in the indictment is fundamental and nonwaivable,"defendant's contention regarding count two does not require preservation (id.). Wetherefore modify the judgment by reversing that part convicting defendant of criminal sexual actin the first degree under count two of the indictment and dismissing that count without prejudiceto the People to re-present any appropriate charges under that count to another grand jury (see People v Bracewell, 34 AD3d1197, 1198-1199 [2006]).
Contrary to defendant's contention, he was not entitled to his own copy of the videotape ofthe victim's testimony presented to the grand jury, which defense counsel had an opportunity toview (see People v Smith, 289 AD2d 1056, 1058 [2001], lv denied 98 NY2d 641[2002]). We reject defendant's further contention that the court erred in allowing the People topresent the testimony of an expert witness concerning child sexual abuse accommodationsyndrome (CSAAS). Expert testimony concerning CSAAS is admissible to assist the jury inunderstanding the unusual conduct of victims of child sexual abuse where, as here, the testimonyis general in nature and does "not attempt to impermissibly prove that the charged crimesoccurred" (People v Carroll, 95 NY2d 375, 387 [2000]; see People v Bassett, 55 AD3d1434, 1436-1437 [2008], lv denied 11 NY3d 922 [2009]; see also People v Gillard, 7 AD3d540, 541 [2004], lv denied 3 NY3d 659 [2004]). We also reject defendant'scontention that the court erred in permitting the People's forensic pediatrician to testify that theabsence of physical injuries was not inconsistent with sexual abuse of a child (see generallyPeople v Shelton, 307 AD2d 370, 371 [2003], affd 1 NY3d 614 [2004]).
Defendant failed to preserve for our review his contentions that he was denied his rights todue process and equal protection when the People prosecuted him for predatory sexual assaultagainst a child rather than criminal sexual act in the first degree, and that the People also therebyviolated the separation of powers clause of the United States Constitution (see generally People v Jackson, 71AD3d 1457, 1458 [2010], lv denied 14 NY3d 888 [2010]; People v Schaurer, 32 AD3d 1241[2006]). In any event, those contentions are without merit (see People v Lawrence, 81 AD3d 1326, 1326-1327 [2011], lvdenied 17 NY3d 797 [2011]). Finally, we conclude that the sentence is not unduly harsh orsevere. Present—Scudder, P.J., Fahey, Carni, Sconiers and Martoche, JJ.