| People v Rosario |
| 2012 NY Slip Op 07323 [100 AD3d 660] |
| November 7, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Argelis Rosario, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Sharon Y.Brodt, and Roni C. Piplani of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Hollie, J.),rendered November 13, 2008, convicting him of course of sexual conduct against a child in thefirst degree (two counts), course of sexual conduct against a child in the second degree,endangering the welfare of a child, and bail jumping in the second degree, upon a jury verdict,and imposing sentence.
Ordered that the judgment is affirmed.
The defendant was charged with sexually abusing his cousin, who was eight years youngerthan the defendant, over the course of approximately six years. The evidence admitted at trialincluded the defendant's written and videotaped statements, wherein he described five incidentsof sexual conduct with the victim. After a jury trial, the defendant was convicted of course ofsexual conduct against a child in the first degree (two counts), course of sexual conduct against achild in the second degree, endangering the welfare of a child, and bail jumping in the seconddegree.
Contrary to the defendant's contention, the Supreme Court, after a Frye hearing(see Frye v United States, 293 F 1013 [1923]), providently exercised its discretion inprecluding expert testimony on the issue of false confessions and the use of undue influence inpolice interrogations because the proposed testimony was not relevant to the specificcircumstances of this case (see People vBedessie, 19 NY3d 147 [2012]; see generally People v LeGrand, 8 NY3d 449, 452 [2007];People v Lee, 96 NY2d 157, 162 [2001]; People v Allen, 53 AD3d 582, 584 [2008]).
Moreover, there is no merit to the defendant's contentions that the testimony of the victim'scousin, to whom the victim first reported the abuse approximately two years after the abuseended, and the victim's uncle, who then revealed the victim's claims to the victim's immediatefamily members, including a New York City police officer, constituted improper bolstering.Although these family members had no firsthand knowledge of the events about which the victimwould testify, the nonspecific testimony about the child-victim's reports of sexual abuse did notconstitute improper bolstering, as it was offered for the relevant, nonhearsay purpose ofexplaining the investigative process and completing the narrative of events leading to thedefendant's arrest [*2]more than two years after the abuseoccurred (see People v Terry, 85AD3d 1485, 1488 [2011]; People vManning, 81 AD3d 1181, 1183 [2011], lv denied 18 NY3d 959 [2012]; People v Gregory, 78 AD3d 1246[2010]; People v Ragsdale, 68AD3d 897, 897-898 [2009]). Further, the testimony was accompanied by an appropriatelimiting instruction, which is presumed to have been heeded (see People v Hayes, 17 NY3d 46, 56 [2011], cert denied565 US —, 132 S Ct 844 [2011]).
The defendant's failure to object to certain remarks made by the prosecutor duringsummation renders his challenge to those remarks unpreserved for appellate review (seeCPL 470.05 [2]; People vWilliams, 38 AD3d 925, 926 [2007]). In any event, the challenged comments wereeither fair comment on the evidence or responsive to arguments and theories presented in thedefense summation (see People v Galloway, 54 NY2d 396 [1981]; People vAshwal, 39 NY2d 105 [1976]; People v Williams, 38 AD3d at 926; cf. People v Pagan, 2 AD3d 879,880 [2003]).
The defendant never requested a charge regarding delayed outcry, or delayed reporting, evenwhen the trial court specifically asked defense counsel whether there were any further chargesrequested. The defendant's failure to either request such a specific jury instruction or to timelyobject to the instructions as given renders his challenge to the trial court's instruction unpreservedfor appellate review (see CPL 470.05 [2]; People v Melendez, 16 NY3d 869, 870 [2011]; People vWilliams, 38 AD3d at 926). In any event, when considered as a whole, the trial court'sinstructions sufficiently conveyed the correct standards (see People v Melendez, 16NY3d at 870; People v Williams, 38 AD3d at 926). Dillon, J.P., Balkin, Austin andCohen, JJ., concur.