| People v Brown |
| 2015 NY Slip Op 04174 [128 AD3d 1183] |
| May 14, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vFrederick Brown, Appellant. |
Easton Thompson Kasperek Shiffrin, LLP, Rochester (William T. Easton ofcounsel), for appellant.
Mark D. Suben, District Attorney, Cortland (Elizabeth McGrath of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the County Court of Cortland County(Campbell, J.), rendered March 21, 2013, upon a verdict convicting defendant of thecrimes of rape in the first degree (six counts), rape in the second degree (three counts),rape in the third degree, criminal sexual act in the first degree, criminal sexual act in thesecond degree, attempted criminal sexual act in the first degree and sexual abuse in thefirst degree.
In 2011, defendant, the live-in boyfriend of the victim's mother, was charged in asuperseding indictment with various crimes based upon his sexual contact with thevictim (born in 1989) between 2001 and 2005. The victim disclosed the abuse to lawenforcement in July 2010. Following a jury trial, defendant was convicted as charged andthereafter was sentenced to an aggregate prison term of 120 years—reduced byoperation of law to 50 years (see Penal Law § 70.30 [1] [e][vi])—and five years of postrelease supervision. This appeal by defendantensued.
Defendant does not challenge either the legal sufficiency or the weight of theevidence adduced at trial, contending instead that County Court committed variousevidentiary rulings. In defendant's view, these errors individually and collectivelyimpaired his ability to mount a defense, thereby depriving him of a fair trial andwarranting reversal of his convictions. For the reasons that follow, we find defendant'sarguments to be unpersuasive and, accordingly, affirm the judgment ofconviction.
[*2] Defendant initially takesissue with County Court's Molineux ruling—specifically, the court'sdecision to allow the victim to testify as to multiple uncharged acts of rape. Prior to trial,the People sought permission to introduce testimony from the victim to the effect thatdefendant raped her approximately twice a week over the course of five years, arguingthat such proof provided necessary background information, established the victim's stateof mind (as well as defendant's motive and intent), eliminated the possibility of a mistakeor accident and was relevant to the element of forcible compulsion. County Courtthereafter issued a written decision, wherein it expressly acknowledged the two-partMolineux test (seePeople v Rivera, 124 AD3d 1070, 1073 [2015]), and granted the People'sapplication.
At trial, the People asked the victim what transpired after defendant first hadintercourse with her, in response to which the victim testified that "[t]hings kept goingthe way they did that first time" and, on average, defendant would come into her room "atleast twice a week" to have sex with her. Defendant's objection to such testimony wasduly noted and overruled.[FN1] Cross-examination of the victimensued, during the course of which defense counsel twice characterized the victim'stestimony in this regard as an assertion that she had been raped by defendant "upwards of500 times" over the course of a five-year period—a number that defense counsel,in an apparent effort to discredit the victim, continued to emphasize in hissummation.[FN2]Defendant now argues that the admission of this testimony—attributing to him500 uncharged acts of rape—was highly prejudicial and operated to deprive himof a fair trial.
To the extent that defendant's argument on this point has been preserved for ourreview, we find it to be lacking in merit. Without belaboring the point, we are satisfiedthat the victim's testimony regarding the uncharged acts of rape was probative of, amongother things, the element of forcible compulsion (see People v Maggio, 70 AD3d 1258, 1260 [2010], lvdenied 14 NY3d 889 [2010]; People v Shofkom, 63 AD3d 1286, 1288 [2009], lvdenied 13 NY3d 799 [2009], [*3]appealdismissed 13 NY3d 933 [2010]), her delay in reporting the charged crimes (see People v Justice, 99 AD3d1213, 1215 [2012], lv denied 20 NY3d 1012 [2013]; People vMaggio, 70 AD3d at 1260), the relationship between defendant and the victim (cf. People v Cullen, 110 AD3d1474, 1475 [2013], affd 24 NY3d 1014 [2014]; People v Carey, 92 AD3d1224, 1225 [2012], lv denied 18 NY3d 992 [2012]) and defendant's motiveand intent (cf. People vThomas, 85 AD3d 1572, 1572 [2011], affd 21 NY3d 226 [2013]; seegenerally People v Lutchmansigh, 306 AD2d 540, 541 [2003], lv denied 100NY2d 596 [2003]). Additionally, while County Court's written decision could have beenmore explicit (see People vNash, 87 AD3d 757, 759 [2011], lv denied 17 NY3d 954 [2011]), therecord nonetheless reflects that County Court was aware of its obligation to balance theprobative value of such evidence against its prejudicial effect, and we have no quarrelwith the court's determination on this point—particularly in view of theaccompanying limiting instructions.[FN3]
Defendant next contends that County Court erred in precluding him from elicitingtestimony that purportedly would have established the victim's motive to fabricate herallegations of rape against defendant. On redirect examination, the victim was asked ifher husband, who was her boyfriend at the time that she first disclosed defendant'sconduct, had "ever ask[ed] [her] to lie about what [defendant] had done," and the victimreplied, "No." Thereafter, defense counsel asked the victim's husband, who was called asa defense witness, on direct examination whether he previously had attempted topersuade a former girlfriend (who was not the victim here) to claim that her father hadraped her, and the victim's husband denied doing so. Defense counsel thereafter sought toquestion this former girlfriend, who also was called as a defense witness, regardingwhether the victim's husband had in fact pressured her to make a false allegation of rapeagainst her own father. The People's objection to such testimony was sustained.Defendant now contends that the preclusion of this testimony deprived him of a fairtrial—reasoning that if the victim's husband tried to persuade a former girlfriend tofalsely claim that her father had raped her, it necessarily follows that the victim's husbandmust have persuaded the victim to fabricate allegations of rape against defendant in thismatter, thereby calling the victim's credibility into question. The fallacy in defendant'sargument is readily apparent, as the proffered testimony neither bore upon the victim'scredibility, demonstrated the victim's propensity for making false accusations norestablished a motive for the victim to lie.
To be sure, a victim's "[p]rior false rape complaints may be admissible when theysuggest a pattern casting substantial doubt on the validity of the [present] charges. . . or indicate a significant probative relation to such charges" (People v Blackman, 90 AD3d1304, 1310 [2011], lv denied 19 NY3d 971 [2012] [internal quotation marksand citation omitted]). Here, however, the sought-after testimony was not offered toshow that the victim had made prior false allegations of rape but, rather, toestablish that her husband previously had attempted to persuade anotherwoman to make such allegations with respect to her father. Similarly, while it is truethat "[p]roof aimed at establishing a motive to fabricate is never collateral and may not beexcluded on that ground" (People v Grant, 60 AD3d 865, 865 [2009] [internalquotation marks and citations omitted]), defendant's attempt to indirectly attack thevictim's credibility by attacking the credibility of her husband—through anunrelated third party and regarding an allegation of rape that implicated neither the victimnor defendant—is simply too attenuated to withstand scrutiny. Notably, defensecounsel thoroughly cross-examined the victim regarding her [*4]accusations against defendant, the circumstancessurrounding her disclosure, the reasons underlying her delay in reporting the abuse andher husband's purported role in coming forward. For all of these reasons, we do not findthat County Court abused its discretion in precluding the ex-girlfriend's testimony on thispoint.
Nor do we find merit to defendant's claim that County Court abused its discretion inpermitting Megan Dietz, a licensed clinical social worker, to testify as an expertregarding Child Sexual Abuse Accommodation Syndrome (hereinafter CSAAS). To theextent that defendant challenges the admissibility of such testimony in general, it is wellsettled that "[e]xpert testimony regarding CSAAS may be admitted to explain behavior ofa victim that might appear unusual or that jurors may not be expected to understand" (People v Gregory, 78 AD3d1246, 1247 [2010], lv denied 16 NY3d 831 [2011] [internal quotation marksand citation omitted]; see Peoplev Williams, 20 NY3d 579, 583-584 [2013]; People v Hughes, 114 AD3d 1021, 1024 [2014], lvdenied 23 NY3d 1038 [2014]; People v Pereau, 45 AD3d 978, 980 [2007], lvdenied 9 NY3d 1037 [2008]). Specifically, such testimony may be offered to explainwhy the victim delayed in reporting the abuse (see People v LoMaglio, 124 AD3d 1414, 1416 [2015]; People v Gayden, 107 AD3d1428, 1428-1429 [2013], lv denied 22 NY3d 1138 [2014]; People vMaggio, 70 AD3d at 1260; People v Pereau, 45 AD3d at 980).
As to whether Dietz was qualified to offer testimony on this topic, the trial court isvested with "the initial responsibility of evaluating whether an expert possesses therequisite skill, training, education, knowledge or experience from which it can beassumed that the information imparted or the opinion rendered is reliable" (People v Lashway, 112 AD3d1222, 1223 [2013] [internal quotation marks and citations omitted]; see People vMunroe, 307 AD2d 588, 591 [2003], lv denied 100 NY2d 644 [2003]). Theexpert's competency, in turn, "can be derived from either formal training or [l]ongobservation and actual experience" (People v Lashway, 112 AD3d at 1223[internal quotation marks, citations and emphasis omitted]).
Here, Dietz testified at length regarding her educational background, which includeda Master's degree in social work, as well as her relevant work experience. In this regard,Dietz indicated that she specialized in "trauma related to sexual and domestic violence"and, to that end, had interviewed or counseled approximately 600 victims of rape orsexual abuse—roughly 60% of whom were children. Dietz also outlined thetraining programs that she had conducted for various community-based groups andindicated that she had, on three prior occasions, testified in court as a CSAAS expert.Based upon Dietz's training and practical experience, "we are of the view that CountyCourt providently exercised its discretion in permitting [her] to provide expert testimony"on the subject of CSAAS (People v Lashway, 112 AD3d at 1224 [internalquotation marks and citation omitted]).
Further, contrary to defendant's assertion, Dietz did not stray beyond the permissibleconfines "of expert testimony explaining the common behaviors of victims of child sexabuse" (People v Jabaut,111 AD3d 1140, 1145 [2013], lv denied 22 NY3d 1139 [2014]). Dietztestified that she had not met and did not know the victim, nor was she aware of theparticular facts of this case or the underlying charges against defendant, and at no timedid Dietz express any opinion as to either the victim's credibility or defendant's guilt(see id. at 1145; People v Gregory, 78 AD3d at 1247; People vMaggio, 70 AD3d at 1260-1261). Additionally, although some of the behaviorsidentified by Dietz were similar to those displayed by the victim in this case, Dietznonetheless spoke of such behaviors in general terms (see People v LoMaglio,124 AD3d at 1416), and nothing in the record suggests that "the prosecutor tailored thehypothetical questions [posed to Dietz] to include facts concerning the abuse thatoccurred in this particular case" (People v Williams, 20 NY3d at 584). Hence, noimpermissible bolstering of the victim's [*5]testimonyoccurred. Under these circumstances, County Court did not abuse its discretion inpermitting Dietz's testimony on the issue of CSAAS.[FN4]
Finally, we find no merit to defendant's claim that the sentence imposed was harshand excessive. As noted previously, defendant's sentence was reduced by operation oflaw to an aggregate prison term of 50 years (see Penal Law § 70.30[1] [e] [vi]) and, in light of the protracted and exploitive nature of defendant's crimesagainst the victim, "we find no abuse of discretion or extraordinary circumstanceswarranting a reduction of the sentence in the interest of justice" (People v Jabaut,111 AD3d at 1148). Defendant's remaining arguments, to the extent not specificallyaddressed, have been examined and found to be lacking in merit.
Garry, J.P., Lynch and Clark, JJ., concur. Ordered that the judgment is affirmed.
Footnote 1:At the conclusion of thevictim's direct examination, County Court gave a limiting instruction to the jury, advisingit that such testimony could only be considered "on the questions of defendant's intentand motive to commit the crimes charged, the victim's failure to promptly disclose, therelationship between . . . defendant and the victim, and to explain thepresence of forcible compulsion." In so doing, County Court twice informed the jury thatsuch testimony could not be considered "for the purpose of proving that . . .defendant had a propensity or predisposition to commit the crimes charged." A similarlimiting instruction was included in County Court's final charge to the jury. Defensecounsel did not object to the instructions as given, nor did he request any furtherinstructions on this point.
Footnote 2:The crux of trialcounsel's argument was that, given the physical layout and composition of the victim'shousehold during the relevant time period, it was implausible that defendant could haveraped the victim 500 times without any other member of the household seeing or hearingone of these encounters or otherwise suspecting that something was amiss. At oralargument, appellate counsel acknowledged that trial counsel's decision in this regard wasa tactical one aimed at minimizing the impact of County Court's Molineux rulingand undermining the victim's credibility.
Footnote 3:As for defendant'sassertion that he similarly was prejudiced by County Court's decision to permit certaintestimony regarding the details of a medical procedure that the victim underwent, wedeem any error in this regard to be harmless.
Footnote 4:We note that CountyCourt included an appropriate limiting instruction on this point in its final charge to thejury.