| People v Gopaul |
| 2013 NY Slip Op 08659 [112 AD3d 966] |
| December 26, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Harold Gopaul, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Johnnette Traill, and Emil Bricker of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Lasak, J.), rendered September 8, 2010, as amended September 10, 2010, convictinghim of criminal sexual act in the first degree (six counts), sexual abuse in the first degree(six counts), criminal sexual act in the second degree, criminal sexual act in the thirddegree (two counts), assault in the third degree, and endangering the welfare of a child,upon a jury verdict, and imposing sentence.
Ordered that the judgment, as amended, is affirmed.
The Supreme Court providently exercised its discretion in permitting the testimonyof the People's expert witness on the subject of adolescent sexual abuse. "Experttestimony is properly admitted if it helps to 'clarify an issue calling for professional ortechnical knowledge, possessed by the expert and beyond the ken of the typical juror' "(People v Diaz, 20 NY3d569, 575 [2013], quoting De Long v County of Erie, 60 NY2d 296, 307[1983]; see People vWilliams, 20 NY3d 579, 583 [2013]). "[E]xpert testimony regarding rapetrauma syndrome, abused child syndrome or similar conditions may be admitted toexplain behavior of a victim that might appear unusual or that jurors may not be expectedto understand" (People v Carroll, 95 NY2d 375, 387 [2000]; see People vDiaz, 20 NY3d at 575-576). The expert's testimony was properly admitted to explainthe issue of delayed disclosure and to counter the defense claim that the complainantfabricated the sexual abuse allegations when her parents objected to her having aboyfriend (see People vWallis, 24 AD3d 1029, 1033 [2005]). The testimony was also properly admittedto explain why the complainant did not recall with specificity when certain of the allegedincidents occurred, and why victims of adolescent sexual abuse may manifest a "flataffect" when testifying. The testimony was "general in nature and does not attempt toimpermissibly prove that the charged crimes occurred" (People v Ennis, 107 AD3d1617, 1619 [2013] [internal quotation marks omitted]; see People v Gayden, 107AD3d 1428, 1428 [2013]). To the extent the expert testified as to an abuser'sbehavior patterns, such testimony was admissible to help explain "why victims mayaccommodate abusers and why they wait before disclosing the abuse" (People vWilliams, 20 NY3d at 584; see People v Diaz, 20 NY3d at 575).
The defendant's contention that he was deprived of a fair trial by certain comments[*2]made by the prosecutor in his opening statement andsummation is unpreserved for appellate review (see CPL 470.05 [2]; People v Thompson, 99 AD3d819, 819 [2012]; People vUmoja, 70 AD3d 867, 868 [2010]; People v Tate, 275 AD2d 380, 381[2000]). In any event, to the extent that some of the challenged comments were improper,they were not so flagrant or pervasive as to deprive the defendant of a fair trial (see People v Ward, 106 AD3d842, 843 [2013]; People vPhilbert 60 AD3d 698, 699 [2009]; People v Almonte, 23 AD3d 392, 394 [2005]).
The Supreme Court erred in denying the defendant's request for a missing witnesscharge with respect to the police officer who took him into custody at the police stationand in permitting certain testimony by the complainant and the complainant's friend thatconstituted improper bolstering. However, the errors were harmless, as the evidence ofguilt was overwhelming and there was no significant probability that the errorscontributed to the defendant's convictions (see People v Crimmins, 36 NY2d230, 242 [1975]; People vSweeney, 92 AD3d 810, 811 [2012]; People v Smalls, 81 AD3d 669, 670 [2011]). Skelos, J.P.,Dickerson, Cohen and Hinds-Radix, JJ., concur.