| People v Barnes |
| 2015 NY Slip Op 01656 [125 AD3d 990] |
| February 25, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Jeremiah Barnes, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Leila Hull of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove andCamille O'Hara Gillespie of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Chun, J.), rendered September 8, 2011, convicting him of course of sexual conductagainst a child in the first degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's conviction of course of sexual conduct against a child arises fromhis sexual abuse of his granddaughter beginning when she was seven years old. At trial,the child complainant testified that the defendant's abuse included several acts of sexualintercourse. The People called a medical expert, who testified that her physicalexamination of the child revealed a "notch" on the child's hymen, and that a child'shymen could remain intact even if there was penetration. The defendant also presentedthe testimony of a medical expert who disagreed that there was a notch or any injury tothe child's hymen, and opined that it was unlikely that penetration occurred, becausethere was no evidence of injury to the hymen.
In instructing the jury on the legal definition of "sexual intercourse," the SupremeCourt expanded the standard jury charge to include a statement that "sexual intercoursedoes not necessarily require the hymen to be broken," which was consistent with thetestimony of the People's medical expert. Although this was not an incorrect statement ofthe law (see People v Williams, 259 AD2d 509 [1999]; People vBerardicurti, 167 AD2d 840, 841 [1990]), a core component of the defense theorywas that there was no physical evidence to corroborate the child's testimony, and theSupreme Court made no reference to the testimony of the defendant's expert witness.Under these circumstances, the charge was not appropriately evenhanded (see Peoplev Culhane, 45 NY2d 757, 758 [1978]; People v Tomczak, 189 AD2d 926,928 [1993]; People v Erts, 138 AD2d 506, 507-508 [1988], affd 73NY2d 872 [1989]). However, since the defendant's position that there was no physicalcorroboration of the child's testimony was made clear to the jury through the testimony ofhis expert witness and defense counsel's summation, and the court advised the jurors thatthey were "the sole and exclusive judges of the facts," the deficiency in the court's chargedid not deprive the defendant of a fair trial (see People v Culhane, 45 NY2d at758; People v Montana, 192 AD2d 623 [1993]; People v Tomczak, 189AD2d at 928; People v Nieves, 186 AD2d 281 [1992]; People v Outlaw,172 AD2d 697 [1991]; People v Gray, 144 [*2]AD2d 483, 484 [1988]).
The defendant was not deprived of the effective assistance of counsel (seeStrickland v Washington, 466 US 668, 688 [1984]).
The defendant's claim that his right to a public trial was violated is unpreserved forappellate review (see CPL 470.05 [2]; People v Alvarez, 20 NY3d 75 [2012]; People v Miller, 112 AD3d856 [2013]), and we decline to review it in the exercise of our interest of justicejurisdiction.
The defendant's contention regarding the admissibility of certain testimony by thePeople's child sexual abuse expert is unpreserved for appellate review (see CPL470.05 [2]; People v Naranjo, 194 AD2d 747 [1993]), and we decline to review itin the exercise of our interest of justice jurisdiction.
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]). Eng, P.J., Cohen, Hinds-Radix and LaSalle, JJ., concur.