| People v Nicholson |
| 2014 NY Slip Op 04611 [118 AD3d 1423] |
| June 20, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vChristopher A. Nicholson, Also Known as John Doe, Appellant. (Appeal No.1.) |
Davison Law Office PLLC, Canandaigua (Mary P. Davison of counsel), fordefendant-appellant.
Christopher A. Nicholson, defendant-appellant pro se.
Sandra Doorley, District Attorney, Rochester (Geoffrey Kaeuper of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Francis A. Affronti,J.), rendered September 22, 2009. 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 appeal from the judgment insofar as it imposed sentenceis dismissed and the judgment is otherwise affirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting himupon a jury verdict of course of sexual conduct against a child in the first degree (PenalLaw § 130.75 [1] [former (a)]) and, in appeal No. 2, defendant appealsfrom the resentence. We reject defendant's contention in appeal No. 1 that SupremeCourt erred in allowing the victim and her mother to testify that defendant had threatenedthe victim and physically abused the victim and her brother. That evidence was relevantto explain the victim's delay in reporting the abuse (see People v Westbrooks, 90 AD3d 1536, 1537 [2011],lv denied 18 NY3d 963 [2012]; People v Bennett, 52 AD3d 1185, 1187 [2008], lvdenied 11 NY3d 734 [2008]; see also People v Rivers, 82 AD3d 1623, 1623 [2011],lv denied 17 NY3d 904 [2011]). We further conclude that the record establishesthat the court balanced the probative value of such evidence against its potential forprejudice (see People vHolmes, 104 AD3d 1288, 1290 [2013], lv denied 22 NY3d 1041[2013]). Defendant failed to preserve for our review his contention that the court erred infailing to issue a limiting instruction with respect to that evidence, and we decline toexercise our power to review it as a matter of discretion in the interest of justice (seeWestbrooks, 90 AD3d at 1537). We reject defendant's further contention that thefailure to object to the absence of the limiting instruction rendered counsel ineffective(see People v Williams, 107AD3d 1516, 1516-1517 [2013], lv denied 21 NY3d 1047 [2013]).
Defendant next contends in appeal No. 1 that the court erred in admitting thetestimony of an expert with respect to child sexual abuse accomodation syndrome(CSAAS) because the issue of delayed victim disclosure was not beyond the ken of thejurors in this case. It is well settled that "[e]xpert testimony concerning CSAAS isadmissible to assist the jury in understanding the unusual conduct of victims of childsexual abuse where, as here, the testimony is general in nature and does not attempt toimpermissibly prove that the charged crimes occurred" (People v Gayden, 107 AD3d1428, 1428-1429 [2013], lv denied 22 NY3d 1138 [2014] [internal quotationmarks omitted]; see People vSpicola, 16 NY3d 441, 465 [2011], cert denied 565 US &mdash, 132 SCt 400 [2011]; People vEnnis, 107 AD3d 1617, 1619 [2013], lv denied 22 NY3d 1040 [2013]).Contrary to defendant's contention, the record of the voir dire does not establish that allthe sworn jurors were aware of and understood the reasons for delayed disclosure byvictims of sexual abuse and, moreover, the CSAAS expert also testified concerningunusual conduct of victims of child sexual abuse other than delayed disclosure.
Defendant further contends in appeal No. 1 that the court erred in allowing thePeople to call a rebuttal witness who testified concerning collateral matters. Contrary todefendant's contention, the rebuttal witness was properly called to give testimony thatwas relevant to the defense witness's bias or motive to fabricate, which is not collateral(see People v Anonymous, 96 NY2d 839, 840 [2001]). The defense witness wasdefendant's former girlfriend, and the rebuttal witness was defendant's ex-wife, whomarried defendant after he and the defense witness ended their romantic relationship. Inher cross-examination of the defense witness, the prosecutor attempted to show thatdefendant and the defense witness were romantically involved at the time of the trial, butthe defense witness would admit only that she and defendant were friends, and claimedthat she and defendant had been friends "all along," i.e., they were friends even whendefendant and the rebuttal witness were married. The prosecutor informed thecourt that she wanted to call the rebuttal witness to rebut the defense witness's testimonythat she and defendant were "friends this entire time." We disagree with our dissentingcolleagues that the rebuttal witness should not have been allowed to testify. Reading theprosecutor's colloquy with the court on this issue, together with her cross-examination ofthe defense witness, we conclude that the purpose of calling the rebuttal witness was toshow that defendant and the defense witness were romantically involved at the time ofthe trial, which the prosecutor believed could be inferred if the defense witness anddefendant had not been friends when he was married to the rebuttal witness.
We also disagree with our dissenting colleagues that our affirmance of the trialcourt's ruling violates People vConcepcion (17 NY3d 192 [2011]). The Court of Appeals has" 'construed CPL 470.15 (1) as a legislative restriction on the AppellateDivision's power to review issues either decided in an appellant's favor, or not ruledupon, by the trial court' " (id. at 195). Contrary to the position of thedissent, we are not affirming on a ground that is different from that determined by thecourt. The court allowed the rebuttal witness to testify for the "limited purpose" ofwhether the defense witness and defendant were friends, and we conclude that the court'sdetermination was proper. We simply differ from the dissent in our interpretation of themeaning of the rebuttal witness's testimony tending to show that the defense witness anddefendant were not friends after defendant married the rebuttal witness. The rebuttalwitness testified that defendant had contact with the defense witness in 2003 but, afterthe rebuttal witness indicated to defendant that she was not pleased with that contactbetween them, she was not aware of any further contact between defendant and thedefense witness. Whereas the dissent infers nothing from that testimony other than thatdefendant and the defense witness were not friends after 2003, we conclude that apermissible inference from that testimony was that, despite her testimony, the defensewitness never lost her romantic feelings for defendant, even at the time of trial.
Viewing the evidence in light of the elements of the crime of course of sexualconduct against a child as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), wereject defendant's contention in his pro se supplemental brief that the verdict is againstthe weight of the evidence in appeal No. 1 (see generally People v Bleakley, 69NY2d 490, 495 [1987]). Defendant also contends in his pro se supplemental brief that hereceived ineffective assistance of counsel in appeal No. 1. Inasmuch as we conclude thatdefendant was not denied a fair trial by any alleged instances of prosecutorial misconducton summation, defense counsel's failure to object to those comments does not constituteineffective assistance of counsel (see People v Lyon, 77 AD3d 1338, 1339 [2010], lvdenied 15 NY3d 954 [2010]). In addition, defense counsel was not ineffective infailing to call a witness to rebut the testimony of the CSAAS expert (see People v Wallace, 60AD3d 1268, 1270 [2009], lv denied 12 NY3d 922 [2009]). Defendant'scontention that defense counsel failed to obtain certain documentary evidence is based onmatters outside the record and must be raised by way of a motion pursuant to CPL article440 (see People v Gerald,103 AD3d 1249, 1250 [2013]). Finally, defendant's " '[s]peculation that amore vigorous cross-examination might have [undermined the credibility of a witness]does not establish ineffectiveness of counsel' " (People v Williams, 110 AD3d1458, 1459-1460 [2013], lv denied 22 NY3d 1160 [2014]).
Contrary to defendant's contention in appeal No. 2, the resentence is not undulyharsh or severe. We agree with defendant, however, that the court erred in failing tomodify the duration of the order of protection upon the resentence. Although defendantfailed to preserve that contention for our review (see People v Nieves, 2 NY3d 310, 315-317 [2004];People v Tidd [appeal No. 2], 81 AD3d 1405, 1406 [2011]), we neverthelessexercise our power to review it as a matter of discretion in the interest of justice(see CPL 470.15 [3] [c]). We therefore modify the resentence in appeal No. 2 byamending the order of protection, and we remit the matter to Supreme Court to determinethe jail time credit to which defendant is entitled and to specify in the order of protectionan expiration date in accordance with the version of CPL 530.12 (former [5] [ii]) ineffect when the judgment was rendered on September 22, 2009 (see People v Jackson, 85 AD3d1697, 1699 [2011], lv denied 17 NY3d 817 [2011]; Tidd, 81 AD3dat 1406; People v Harris, 50AD3d 1608, 1609 [2008], lv denied 10 NY3d 959 [2008]).
All concur except Carni and Lindley, JJ., who dissent and vote to reverse inaccordance with the following memorandum.
Carni and Lindley, JJ. (dissenting). We respectfully dissent. We would reverse thejudgment of conviction in appeal No. 1 and grant defendant a new trial, and vacate theresentence in appeal No. 2. In our view, Supreme Court erred in allowing the People tocall a rebuttal witness whose testimony related solely to collateral matters. "It is wellestablished that the party who is cross-examining a witness cannot introduce extrinsicdocumentary evidence or call other witnesses to contradict a witness' answers concerningcollateral matters solely for the purpose of impeaching that witness' credibility"(People v Pavao, 59 NY2d 282, 288-289 [1983]; see People v Hanley, 5 NY3d108, 112 [2005]). At the same time, however, "extrinsic proof tending to establish areason to fabricate is never collateral and may not be excluded on that ground"(People v Hudy, 73 NY2d 40, 56 [1988]). Thus, the People may call a rebuttalwitness to provide testimony that is relevant to a defense witness's bias or motive tofabricate, which is not collateral (see People v Anonymous, 96 NY2d 839, 840[2001]).
Here, the People's rebuttal witness was defendant's ex-wife, who was called to rebutcertain testimony offered by defendant's sole witness, a former girlfriend who dateddefendant from 1995 to 2003. The defense witness testified that she had a "wonderful"relationship with defendant's children—the victim and her brother—andthat she never witnessed defendant engage in any violent acts toward them. Oncross-examination, the defense witness acknowledged that she had remained defendant'sfriend and visited him frequently while he was in jail pending trial. She alsoacknowledged that she did not want to see anything bad happen to defendant.
Following the defense witness's testimony, the People announced their intention tocall the ex-wife as a rebuttal witness. Defense counsel objected and asked for an offer ofproof. When the court asked the prosecutor what she expected from the ex-wife'stestimony, the prosecutor stated, "The [defense witness] testified specifically that she hasbeen friends with the defendant the entire time, including the time after she broke upwith him, and he was with [the rebuttal witness] up to the present date. I am calling thewitness to rebut that statement that they were friends this entire time, because that's notcorrect." The court then asked, "That is the limited purpose, that they were or were notfriends during that period; is that what you are saying?" The prosecutor responded,"That's right." The court allowed the rebuttal witness to testify over defendant'sobjection. She proceeded to testify that she and defendant met in 2003, married in 2005and separated in 2008. The rebuttal witness further testified that, to her knowledge,defendant did not have any contact with the defense witness after 2003.
We conclude that the court erred in allowing the rebuttal witness to testify becausethe limited purpose of her testimony, as stated by the prosecutor, was to rebut the defensewitness's testimony that she remained friends with defendant after they broke up in 2003.The fact that the defense witness was defendant's friend was relevant to show that shemay have had a bias for testifying on his behalf. The defense witness freelyacknowledged, however, that she was defendant's friend at the time of trial, and it wasthat very testimony that the prosecutor sought to rebut. The rebuttal witness'stestimony—that the defense witness did not have contact with defendant after2003—served only to show that the defense witness was not being truthful whenshe testified that she and defendant remained friends. In our view, that constitutesimpermissible impeachment testimony on a collateral matter. The fact that the defensewitness was not one of defendant's friends while he was married to the rebuttal witness,as the rebuttal witness testified, does not show that the defense witness was biased infavor of defendant. In fact, it tends to show the opposite.
We cannot agree with the majority that "the purpose of calling the rebuttal witnesswas to show that defendant and the defense witness were romantically involved at thetime of trial." As noted, the prosecutor stated that her purpose in calling the rebuttalwitness was to show that the defense witness and defendant were not friends "that entiretime," as the defense witness had testified; the prosecutor did not say anything aboutseeking to show that the defense witness was romantically involved with defendant at thetime of trial, and the rebuttal witness did not testify to that effect or even insinuate asmuch. In any event, the court's ruling in allowing the rebuttal witness to testify was notbased on the ground relied upon by the majority, and we therefore may not affirm on thatbasis (see CPL 470.15 [1]; People v Concepcion, 17 NY3d 192, 196 [2011];People v LaFontaine, 92 NY2d 470, 474 [1998]).
We agree with the People to the extent that they argue that defendant was notprejudiced by the rebuttal witness's testimony. In fact, we are comfortable concludingthat there is no "significant probability . . . that the jury would haveacquitted the defendant had it not been for the error" (People v Crimmins, 36NY2d 230, 242 [1975]; seePeople v Arafet, 13 NY3d 460, 468 [2009]). In order for the harmless erroranalysis to apply in the first instance, however, the proof of guilt must be"overwhelming" (Crimmins, 36 NY2d at 241; see Arafet, 13 NY3d at468). As the Court wrote in Crimmins, "unless the proof of the defendant's guilt,without reference to the error, is overwhelming, there is no occasion for consideration ofany doctrine of harmless error. That is, every error of law (save, perhaps, one of sheeresttechnicality) is, ipso facto, deemed to be prejudicial and to require a reversal,unless that error can be found to have been rendered harmless by the weight and thenature of the other proof" (id. at 241). In our view, the error here cannot becharacterized as "one of sheer[ ] technicality" (id.). Because this case turnedlargely on the testimony of the victim, who did not report the crimes until more thaneight years after they occurred, it cannot be said that the proof of guilt is overwhelming.We are thus constrained to conclude that defendant is entitled to a new trialnotwithstanding that the jury almost certainly would have convicted him even withoutthe rather innocuous rebuttal testimony.
Finally, we agree with the majority that none of defendant's remaining contentions inappeal No. 1 has merit. Present—Centra, J.P., Peradotto, Carni, Lindley andWhalen, JJ.