| People v Ennis |
| 2013 NY Slip Op 04915 [107 AD3d 1617] |
| June 28, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v EddieD. Ennis, Appellant. |
—[*1] Cindy F. Intschert, District Attorney, Watertown (Wendy Evans Lehmann, NewYork Prosecutors Training Institute, Inc., Albany, of counsel), for respondent.
Appeal from a judgment of the Jefferson County Court (Kim H. Martusewicz, J.),rendered May 24, 2010. The judgment convicted defendant, upon a jury verdict, ofcourse of sexual conduct against a child in the first degree, course of sexual conductagainst a child in the second degree and endangering the welfare of a child (two counts).
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him following a jury trial of,inter alia, course of sexual conduct against a child in the first degree (Penal Law §130.75 [1] [a]) and course of sexual conduct against a child in the second degree(§ 130.80 [1] [b]), defendant contends that he is entitled to a new trial becauseCounty Court erred in allowing the victim to testify about an uncharged incident ofsexual touching. We reject that contention. The challenged testimony was the result of aquestion during redirect examination by the prosecutor, who asked the victim where thefirst incident of sexual touching took place. In response, and over defense counsel'sobjection, the victim testified that she was first touched by defendant at her grandparents'home. The grandparents did not live in the Village of Clayton, where, according to theindictment, all of the charged offenses occurred. We nevertheless conclude that thetestimony in question was admissible "to complete the narrative of the events charged inthe indictment," and to provide "necessary background information" (People v Workman, 56 AD3d1155, 1156 [2008], lv denied 12 NY3d 789 [2009] [internal quotation marksomitted]; see People vJustice, 99 AD3d 1213, 1215 [2012], lv denied 20 NY3d 1012 [2013];People v Bassett, 55 AD3d1434, 1436 [2008], lv denied 11 NY3d 922 [2009]). We note that the victimdid not testify to any specific acts that were committed by defendant at her grandparents'home. Defendant further contends that the court thereby violated its pretrial ruling, whichprohibited the People from presenting any evidence of sexual contact between defendantand the victim that occurred at the home of the victim's grandparents unless defendantopened the door to such testimony. Even assuming, arguendo, that defendant's contentionis preserved for our review (see generally People v Shack, 86 NY2d 529,541-542 [1995]), we nevertheless agree with the People that defense counsel opened thedoor to that limited testimony during his cross-examination of the victim (seegenerally People v Massie, 2 NY3d 179, [*2]183-184[2004]; People v Melendez, 55 NY2d 445, 451 [1982]).
We further conclude that, viewing the evidence in light of the elements of the crimesas charged to the jury (seePeople v Danielson, 9 NY3d 342, 349 [2007]), the verdict is not against theweight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495[1987]). Although there were minor inconsistencies between the victim's trial testimonyand her grand jury testimony, those inconsistencies did not render her testimonyincredible as a matter of law (see People v Smith, 73 AD3d 1469, 1470 [2010], lvdenied 15 NY3d 778 [2010]). This case turned largely upon the credibility of thevictim and defendant, who also testified at trial, and we perceive no basis in the recordfor disturbing the jurors' credibility determinations (see People v Massey, 61 AD3d 1433, 1433 [2009], lvdenied 13 NY3d 746 [2009]).
Defendant failed to preserve for our review his contention that he was denied a fairtrial based on the testimony of an expert witness with respect to child sexual abuseaccommodation syndrome (CSAAS) (see People v Lawrence, 81 AD3d 1326, 1327 [2011], lvdenied 17 NY3d 797 [2011]). In any event, that contention lacks merit. It is wellsettled that "[e]xpert testimony concerning CSAAS is admissible to assist the jury inunderstanding the unusual conduct of victims of child sexual abuse where, as here, thetestimony is general in nature and does 'not attempt to impermissibly prove that thecharged crimes occurred' " (People v Filer, 97 AD3d 1095, 1096 [2012], lv denied19 NY3d 1025 [2012], quoting People v Carroll, 95 NY2d 375, 387 [2000];see People v Goupil, 104AD3d 1215, 1216 [2013]; cf. People v Williams, 20 NY3d 579, 582 [2013]).
We reject defendant's further contention that the court's evidentiary rulings duringthe cross-examination of prosecution witnesses impaired his ability to present a defense(see People v Brown, 70AD3d 1341, 1342 [2010], lv denied 14 NY3d 839 [2010]). "[A]n accused'sright to cross-examine witnesses . . . is not absolute, and [t]he scope ofcross-examination is within the sound discretion of the trial court" (People v Gilchrist, 98 AD3d1232, 1232 [2012], lv denied 20 NY3d 932 [2012] [internal quotation marksomitted]; see People vHayes, 17 NY3d 46, 53 [2011], cert denied 565 US —, 132 S Ct844 [2011]). In many of the instances cited by defendant, in which the court sustainedobjections from the People, the questions posed by defense counsel were either outsidethe scope of direct examination or were previously asked and answered. In otherinstances, after the court sustained objections to questions posed by defense counsel, thequestions were rephrased and the witnesses responded without further objection, andthus defendant waived his contention with respect to those instances (see generally People v Corby,6 NY3d 231, 235-236 [2005]; Gilchrist, 98 AD3d at 1232; People v Gonzalez, 89 AD3d1443, 1444-1445 [2011], lv denied 19 NY3d 973 [2012],reconsideration denied 20 NY3d 932 [2012]). In the remainder of the instances,defense counsel's line of questioning was deficient in an evidentiary sense, i.e., thetestimony he sought to elicit lacked a proper foundation or constituted impermissiblehearsay (see generally People v Snyder, 159 AD2d 935, 935 [1990]). Wetherefore conclude that the court's evidentiary rulings were proper and thus thatdefendant's ability to present a defense was not impaired thereby (see Brown, 70AD3d at 1342).
Defendant failed to preserve for our review his further contention that he was denieda fair trial by prosecutorial misconduct based on comments made by the prosecutorduring his opening and closing statements. Defendant either failed to object to theallegedly improper comments (see People v Gonzalez, 81 AD3d 1374, 1374 [2011]; People v Smith, 32 AD3d1291, 1292 [2006], lv denied 8 NY3d 849 [2007]), or his objections weresustained without any request for a curative instruction and the court is thus deemed tohave corrected any error to defendant's satisfaction (see People v Peters, 98 AD3d 587, 589-590 [2012], lvdenied 20 NY3d 934 [2012]). In any event, we conclude that the comments were notso egregious as to deny defendant a fair trial (see People v Dizak, 93 AD3d 1182, 1184 [2012], lvdenied 19 NY3d 972 [2012], reconsideration denied 20 NY3d 932 [2012];People v Jacobson, 60AD3d 1326, 1328 [2009], lv denied 12 NY3d 916 [2009]).[*3]
Finally, with respect to defendant's contentionthat he was denied effective assistance of counsel, we note that the constitutional right toeffective assistance of counsel "does not guarantee a perfect trial, but assures thedefendant a fair trial" (People v Flores, 84 NY2d 184, 187 [1994]). Havingexamined the record before us, we conclude that "the evidence, the law, and thecircumstances of [this] particular case, viewed in totality and as of the time of therepresentation, reveal that the attorney provided meaningful representation" (People vBaldi, 54 NY2d 137, 147 [1981]), and thus it cannot be said that defendant wasdeprived of a fair trial. Present—Smith, J.P., Fahey, Peradotto, Lindley andWhalen, JJ.