| People v Rodriguez |
| 2014 NY Slip Op 01975 [115 AD3d 580] |
| March 25, 2014 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Nilton Rodriguez, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Christopher P. Marinelli ofcounsel), for respondent.
Judgment, Supreme Court, New York County (Gregory Carro, J.), rendered October17, 2011, as amended October 20, 2011, convicting defendant, after a nonjury trial, ofcourse of sexual conduct against a child in the first degree, and sentencing him to a termof 20 years, unanimously affirmed.
The verdict was not against the weight of the evidence (People v Danielson, 9 NY3d342, 348-349 [2007]). There is no basis for disturbing the court's credibilitydeterminations, including its resolution of inconsistencies in testimony. The victim'smother, who caught defendant in his final act of sexual conduct toward the victim,provided significant corroborating testimony.
The submissions on defendant's CPL 440.10 motion to vacate the judgment are notproperly before this Court because defendant did not obtain leave to appeal from thedenial of the motion (see CPL 450.15 [1]; 460.15; People v Dukes, 284AD2d 236 [2001], lv denied 97 NY2d 681 [2001]). "Defendant's request that thebench for this appeal entertain a leave application is procedurally improper because CPL460.15 specifically provides that such an application can only be made to an individualjustice, and can only be made once" (People v Wilkov, 77 AD3d 512, 513 [1st Dept 2010],lv denied 16 NY3d 746 [2011]).
Since defendant's objection to expert testimony was made on completely differentgrounds from those raised on his appeal, he did not preserve his appellate claim that theexpert's testimony was improper because it was tailored to the facts of the case (seee.g. People v Garcia, 83 NY2d 817, 819 [1994]). Defendant's constitutional claim islikewise unpreserved (seePeople v Lane, 7 NY3d 888, 889 [2006]). We decline to review these claims inthe interest of justice, and as alternative holding, we reject them on the merits. The courtproperly exercised its discretion in admitting expert testimony on child sexual abuse asan aid in reaching a verdict (see People v Taylor, 75 NY2d 277, 288 [1990]). Theexpert, Dr. Eileen Treacy, discussed in general terms how a child might react to sexualabuse, and when and to whom a child might reveal the abuse. Significantly, the expert'stestimony did not include responses to any hypotheticals tailored to the facts of the caseor otherwise imply that the expert found the testimony of the particular complainant to becredible (compare People vWilliams, 20 NY3d 579, 584 [2013]; see [*2]People v Spicola, 16NY3d 441, 462-467 [2011], cert denied 565 US —, 132 S Ct 400[2011]).
We perceive no basis for reducing the sentence. Concur—Gonzalez, P.J.,Mazzarelli, Renwick, Feinman and Gische, JJ.