| People v Davis |
| 2014 NY Slip Op 04510 [118 AD3d 906] |
| June 18, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Anderson Davis II, Appellant. |
Terry D. Horner, Poughkeepsie, N.Y., for appellant.
William V. Grady, District Attorney, Poughkeepsie, N.Y. (Joan H. McCarthy ofcounsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Dutchess County (T.Dolan, J.), rendered August 1, 2006, convicting him of course of sexual conduct againsta child in the first degree, rape in the first degree, and rape in the second degree (20counts), upon a jury verdict, and sentencing him to a determinate term of imprisonmentof 12 years followed by a period of five years of postrelease supervision on theconviction of course of sexual conduct against a child in the first degree, to runconsecutively to the sentences imposed upon the convictions of rape in the second degreeand rape in the first degree, indeterminate terms of imprisonment of 2
Ordered that the judgment is modified, on the law, by directing that the terms ofimprisonment imposed upon the convictions of course of sexual conduct against a childin the first degree and rape in the second degree under count two of the indictment shallrun concurrently with each other; as so modified, the judgment is affirmed.
Contrary to the People's contention, the defendant's argument that the evidence waslegally insufficient to support his convictions is preserved for appellate review (seeCPL 470.05 [2]; People vBeriguete, 51 AD3d 939, 940 [2008]; People v Mendez, 34 AD3d 697, 698 [2006]). Viewing theevidence in the light most favorable to the prosecution (see People v Contes, 60NY2d 620, 621 [1983]), we find that it was legally sufficient to establish the defendant'sguilt of course of sexual conduct in the first degree, rape in the first degree, and rape inthe second degree (20 counts), beyond a reasonable doubt. Moreover, in fulfilling ourresponsibility to conduct an independent review of the weight of the evidence (seeCPL 470.15 [5]; People vDanielson, 9 NY3d 342 [2007]), we nevertheless accord great deference to thejury's opportunity to view the witnesses, hear the testimony, and observe demeanor(see People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the recordhere, we are satisfied that the verdict of guilt as to all of the crimes of which thedefendant was convicted was not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]).
[*2] The County Courtprovidently exercised its discretion in permitting the expert testimony of Dr. EileenTreacy on the subject of child sexual accommodation syndrome. " '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 typicaljuror' " (People vGopaul, 112 AD3d 966, 966 [2013] [internal quotation marks omitted], quotingPeople v Diaz, 20 NY3d569, 575 [2013]; see Peoplev Williams, 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]). Dr. Treacy'stestimony was properly admitted to explain why a child's disclosure of sexual abuse maybe delayed (see People v Williams, 20 NY3d at 584; People v Diaz, 20NY3d at 575; People v Carroll, 95 NY2d at 387; People v Gopaul, 112AD3d at 966; People vGayden, 107 AD3d 1428, 1429 [2013]). Contrary to the defendant's contention,Dr. Treacy's testimony was general in nature and did not impermissibly suggest that thecharged crimes occurred (see People v Diaz, 20 NY3d at 575; People vCarroll, 95 NY2d at 387; People v Gopaul, 112 AD3d at 966).
"A granting of an adjournment for any purpose is a matter of discretion for the trialcourt" (People vMuriel-Herrera, 68 AD3d 1135, 1136 [2009]). Here, the County Courtprovidently exercised its discretion in denying defense counsel's request for anadjournment for preparation of a memorandum (cf. People v McRae, 62 AD3d 723, 724 [2009]), and indenying defense counsel's request for an adjournment of the sentencing hearing (seePeople v Hardy, 294 AD2d 516 [2002]).
The defendant was convicted, under count one of the indictment, of course of sexualconduct against a child in the first degree, for engaging in two or more acts of sexualconduct with the victim occurring over a period of time not less than three monthsbetween July 1998 and June 3, 1999 (see Penal Law § 130.75 [1][a]). The defendant was also convicted, under count two of the indictment, of rape in thesecond degree, for engaging in sexual intercourse with the victim in June 1999 (seePenal Law § 130.30 [1]). The sentences imposed upon the defendant'sconvictions under counts one and two were improperly made to run consecutively, ratherthan concurrently (see Penal Law § 70.25 [2-e]; People v Wood, 37 AD3d283 [2007]). However, contrary to the defendant's contention, the County Courtproperly directed that the sentence imposed upon his conviction of course of sexualconduct against a child in the first degree was to run consecutively to the sentencesimposed upon the other convictions of rape in the second degree, inasmuch as each ofthese counts of rape in the second degree involved separate sexual acts that happenedafter June 3, 1999.
The sentences imposed were not excessive (see People v Suitte, 90 AD2d 80,85-86 [1982]).
The defendant's remaining contentions are unpreserved for appellate review (seeCPL 470.05 [2]), and we decline to review them in the exercise of our interest ofjustice jurisdiction. Dillon, J.P., Dickerson, Cohen and Duffy, JJ., concur.