| People v Gayden |
| 2013 NY Slip Op 04157 [107 AD3d 1428] |
| June 7, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v JohnGayden, Jr., Appellant. |
—[*1] John Gayden, Jr., defendant-appellant pro se. Sandra Doorley, District Attorney, Rochester (Nicole M. Fantigrossi of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Joseph D.Valentino, J.), rendered April 20, 2007. The judgment convicted defendant, upon a juryverdict, of course of sexual conduct against a child in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of course of sexual conduct against a child in the first degree (Penal Law §130.75 [1] [b]). Viewing the evidence in light of the elements of the crime as charged tothe jury (see People vDanielson, 9 NY3d 342, 349 [2007]), we reject defendant's contention that theverdict is against the weight of the evidence (see generally People v Bleakley, 69NY2d 490, 495 [1987]). We further reject defendant's contention that Supreme Courterred in allowing the People to present the testimony of an expert witness concerningchild sexual abuse accommodation syndrome (CSAAS). "Expert testimony concerningCSAAS is admissible to assist the jury in understanding the unusual conduct of victimsof child sexual abuse where, as here, the testimony is general in nature and does 'notattempt to impermissibly prove that the charged crimes occurred' " (People v Filer, 97 AD3d1095, 1096 [2012], lv denied 19 NY3d 1025 [2012], quoting People vCarroll, 95 NY2d 375, 387 [2000]; see generally People v Diaz, 20 NY3d 569, 575-576[2013]). In this case, the People properly offered the expert's testimony "for the purposeof instructing the jury about possible reasons why a child might not immediately reportincidents of sexual abuse" (Carroll, 95 NY2d at 387), and the court properlyprevented the prosecutor from "tailor[ing] hypothetical questions to include factsconcerning the abuse that occurred in this particular case" (People v Williams, 20 NY3d579, 584 [2013]).
Contrary to defendant's contention, the court did not err in denying his challenge forcause to a prospective juror. "Although the prospective juror initially expressed 'a state ofmind that [was] likely to preclude [him] from rendering an impartial verdict based uponthe evidence adduced at the trial' (CPL 270.20 [1] [b]), [he] ultimately statedunequivocally that [he] could follow the law and be fair and impartial" (People v Gladding, 60 AD3d1401, 1402 [2009], lv denied 12 NY3d 925 [2009]; see People vJohnson, 94 NY2d 600, 614 [2000]). Additionally, we conclude that the [*2]sentence is not unduly harsh or severe.
In his main and pro se supplemental briefs, defendant contends that he was deniedhis right to effective assistance of counsel. We reject that contention. Viewing theevidence, the law and the circumstances of this case, in totality and as of the time of therepresentation, we conclude that defendant received meaningful representation (seegenerally People v Baldi, 54 NY2d 137, 147 [1981]).
In his pro se supplemental brief, defendant contends that the prosecutor's summationand the court's charge impermissibly changed the theory of the prosecution. Althoughdefendant failed to preserve that contention for our review, we address it because "theright of an accused to be tried and convicted of only those crimes and upon only thosetheories charged in the indictment is fundamental and nonwaivable" (People v McCallar, 53 AD3d1063, 1064 [2008], lv denied 11 NY3d 833 [2008] [internal quotation marksomitted]). We conclude that "defendant received the requisite ' "fair notice of theaccusations against him" ' " (id. at 1065, quoting People v Grega, 72NY2d 489, 495 [1988]). The indictment included allegations that, between January 26and August 31, 2006, defendant "engaged in two or more acts of sexual conduct, whichincluded at least one act of oral sexual conduct and anal sexual conduct, with a child lessthan thirteen years old." The court, however, instructed the jury that the elements of thecharged offense included the commission of "at least one act of sexualintercourse, oral sexual conduct, anal sexual conduct, or aggravated sexualconduct or contact" (emphasis added), and the charge included the statutorydefinitions of the terms "sexual intercourse" and "aggravated sexual contact."Nevertheless, at trial there was no evidence of sexual intercourse or aggravated sexualcontact. Thus, "[w]hile the trial court should not have charged [the] statutory definitionsof [sexual intercourse and aggravated sexual contact], but instead should have tailored itsinstructions to the case before it, on this record . . . the additional portion ofthe charge had no potential for prejudicing defendant, and thus was harmless error"(Grega, 72 NY2d at 497). Present—Smith, J.P., Fahey, Carni, Sconiers andWhalen, JJ.