| People v LoMaglio |
| 2015 NY Slip Op 00181 [124 AD3d 1414] |
| January 2, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vMatthew L. LoMaglio, Appellant. |
The Abbatoy Law Firm, PLLC, Rochester (David M. Abbatoy, Jr., of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Joanne M.Winslow, J.), rendered January 14, 2014. The judgment convicted defendant, upon anonjury verdict, of course of sexual conduct against a child in the second degree andendangering the welfare of a child.
It is hereby ordered that the judgment so appealed from is unanimously modified as amatter of discretion in the interest of justice and on the law by reversing that partconvicting defendant of endangering the welfare of a child under count two of theindictment and dismissing that count of the indictment, and as modified the judgment isaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a nonjuryverdict of course of sexual conduct against a child in the second degree (Penal Law§ 130.80 [1] [a]) and endangering the welfare of a child(§ 260.10 [1]). Viewing the evidence in light of the elements of the crimesin this bench trial (see People vDanielson, 9 NY3d 342, 349 [2007]), we reject defendant's contention that theverdict is against the weight of the evidence (see generally People v Bleakley, 69NY2d 490, 495 [1987]). Although a different verdict would not have been unreasonable(see Danielson, 9 NY3d at 348), we conclude that, "[b]ased on the weight of thecredible evidence, [Supreme] [C]ourt . . . was justified in finding thedefendant guilty beyond a reasonable doubt" (id.; see People v Romero, 7 NY3d633, 642-643 [2006]). " 'Great deference is to be accorded to the[factfinder's] resolution of credibility issues based upon its superior vantage point and itsopportunity to view witnesses, observe demeanor and hear the testimony' "(People v Gritzke, 292 AD2d 805, 805-806 [2002], lv denied 98 NY2d697 [2002]), and we perceive no reason to disturb the court's credibilitydeterminations.
Contrary to defendant's contention, the court did not err in allowing the People topresent testimony regarding the victim's prompt complaint. The victim in this case madea prompt disclosure to his mother when he was in second grade that he was afraid ofdefendant, one of his gym teachers, that he did not want to go to gym class, and that hehad a nightmare that defendant raped him. The testimony of the mother was admissibleunder the prompt outcry exception to the hearsay rule (see People v Carfora, 69 AD3d751, 751 [2010], lv denied 14 NY3d 798 [2010], reconsideration denied15 NY3d 748 [2010]; seegenerally People v Rosario, 17 NY3d 501, 511 [2011]). In any event, any errorin admitting that testimony is harmless (see Matter of Dandre H., 89 AD3d 553, 554 [2011];People v Olsowske, 247 AD2d 856, 857 [1998], lv denied 91 NY2d 1011[1998]). "In a bench trial, the court is presumed to have 'considered only competentevidence in reaching its verdict,' " and defendant has not shown "that theadmission of inadmissible testimony prejudiced him" (People v Gilbert, 239AD2d 906, 906 [1997], lv denied 90 NY2d 905 [1997]; see Dandre H.,89 AD3d at 554).
Also contrary to defendant's contention, the court properly allowed the People topresent the testimony of an expert witness concerning child sexual abuse accommodationsyndrome (CSAAS). That testimony was relevant to explain the victim's delayeddisclosure of the actual sexual abuse, which he did not report until six years later (seePeople v Carroll, 95 NY2d 375, 387 [2000]; People v Gunther, 67 AD3d 1477, 1478 [2009]).Defendant's further contention regarding the People's use of hypotheticals in examiningthe CSAAS expert is not preserved for our review (see People v Spicola, 16 NY3d 441, 465-466 [2011],cert denied 565 US &mdash, 132 S Ct 400 [2011]; People v Mehmood, 112 AD3d850, 851-852 [2013]). In any event, the expert's testimony did not exceedpermissible bounds (see Spicola, 16 NY3d at 466). "Although some of thetestimony discussed behavior similar to that alleged by the [victim] in this case, theexpert spoke of such behavior in general terms" (People v Diaz, 20 NY3d 569, 575 [2013]; see People v Davis, 118 AD3d906, 907-908 [2014]).
Defendant failed to preserve for our review his contention that the counts in theindictment are time-barred (seePeople v Spencer, 119 AD3d 1411, 1412 [2014], lv denied 24 NY3d965 [2014]). In any event, the count charging course of sexual conduct against a child inthe second degree is not time-barred because the period of limitation did not begin to rununtil April 2012, when the victim disclosed the sexual abuse to his mother and shecontacted a law enforcement agency (see CPL 30.10 [3] [f]). Contrary todefendant's contention, the period of limitation did not begin to run six years earlierinasmuch as no "offense" was "reported to a law enforcement agency or statewide centralregister of child abuse and maltreatment" (CPL 30.10 [3] [f]). "[T]he term 'the offense'[as used in CPL 30.10 (3) (f)] refers to a discrete criminal act or series of acts thatsatisfies the elements of a particular penal statute" (People v Quinto, 18 NY3d 409, 417 [2012]). Here, thevictim made a prompt disclosure of his fear of defendant, but did not report anyoffense.
As the People correctly concede, however, the count charging endangering thewelfare of a child should be dismissed as time-barred. The statute of limitations for thatoffense is two years (see CPL 30.10 [2] [c]), and the tolling provision of CPL30.10 (3) (f) does not apply to that offense (see People v Heil, 70 AD3d 1490, 1491 [2010]). Although,as noted, defendant's contention is unpreserved for our review, we exercise our power toaddress it as a matter of discretion in the interest of justice, and we modify the judgmentaccordingly (see Spencer, 119 AD3d at 1412). We reject defendant's furthercontention that he was denied effective assistance of counsel based on defense counsel'sfailure to move to dismiss the counts of the indictment as time-barred (see People v Wise, 49 AD3d1198, 1200 [2008], lv denied 10 NY3d 940 [2008], reconsiderationdenied 10 NY3d 966 [2008]). "[D]efense counsel's single omission did not 'soseriously compromise[ ] [the] defendant's right to a fair trial [as to] qualify as ineffectiverepresentation' " (id.).
Defendant failed to preserve for our review his contention that his waiver of the rightto a jury trial was not knowing, voluntary, and intelligent (see People v White, 43 AD3d1407, 1407 [2007], lv denied 9 NY3d 1010 [2007]; People v Jackson, 26 AD3d781, 781-782 [2006], lv denied 6 NY3d 849 [2006]; People vWilliams, 5 AD3d 1043, 1044 [2004], lv denied 2 NY3d 809 [2004]). In anyevent, it is without merit (see White, 43 AD3d at 1407-1408; Jackson, 26AD3d at 782; Williams, 5 AD3d at 1044). A waiver of the right to a jury trialmust be in writing and signed by defendant in open court in the presence of the court, allof which occurred here (see CPL 320.10 [2]). "[T]here is nothing in the recordwhich would have alerted the court to the possibility that defendant was not fully awareof the consequences of the waiver" (People v Magnano, 158 AD2d 979, 979[1990], affd 77 NY2d 941 [1991], cert denied 502 US 864 [1991];see CPL 320.10 [2]). Finally, the sentence is not unduly harsh or severe.Present—Centra, J.P., Fahey, Lindley, Sconiers and Whalen, JJ.