| People v Englert |
| 2015 NY Slip Op 06058 [130 AD3d 1532] |
| July 10, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vDonald J. Englert, II, Appellant. |
Easton Thompson Kasperek Shiffrin LLP, Rochester (Brian Shiffrin of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Robert J. Shoemaker of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Dennis M. Kehoe, A.J.),rendered April 9, 2013. The judgment convicted defendant, upon a jury verdict, ofcourse of sexual conduct against a child in the first degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of course of sexual conduct against a child in the first degree (Penal Law§ 130.75 [1] [a]). We reject defendant's contention that County Court erredin permitting the People to introduce evidence of his sexual practices and/or proclivitieswith his former girlfriend. Inasmuch as such evidence was not related to any prior crimeor misconduct, we conclude that it did not constitute Molineux evidence (see People v Cortez, 22 NY3d1061, 1076-1080 [2014] [Abdus-Salaam, J., concurring], cert denied 574 US&mdash, 135 S Ct 146 [2014]).
Contrary to defendant's contention, the court did not abuse its discretion inpermitting the People to elicit testimony from the investigating police officer concerninghis training and background in child sexual abuse investigations as well as testimony thatprovided a general overview of such investigations (see People v Kozlowski, 11 NY3d 223, 238 [2008],rearg denied 11 NY3d 904 [2009], cert denied 556 US 1282 [2009]).Moreover, inasmuch as the officer's testimony did not contain any statement of thevictim, it could not be considered bolstering (see People v Ludwig, 24 NY3d 221, 230-232 [2014]).Defendant failed to preserve for our review his contention that the court erred inpermitting the testimony of an expert with respect to child sexual abuse accommodationsyndrome (CSAAS) (seegenerally People v Goupil, 104 AD3d 1215, 1216 [2013], lv denied 21NY3d 943 [2013]), and, in any event, that contention is without merit (see People v Williams, 20NY3d 579, 583-584 [2013]; People v Spicola, 16 NY3d 441, 465 [2011], cert denied565 US &mdash, 132 S Ct 400 [2011]; People v Black, 124 AD3d 1365, 1366-1367 [2015]). Welikewise reject defendant's contention that the testimony of the nurse practitioner"improperly bolstered the perceived credibility" of the victim. The testimony was wellwithin the type of expert testimony that is accepted by the courts in New York (seeSpicola, 16 NY3d at 465), and did not constitute bolstering (see Ludwig, 24NY3d at 230-232).
Contrary to the further contention of defendant, "[t]he failure of defense counsel toobtain the testimony of an expert does not constitute ineffective assistance of counselbecause defendant has not shown that 'such testimony was available, that it would haveassisted the jury in its determination or that [defendant] was prejudiced by itsabsence' " (People vBrandi E., 38 AD3d 1218, 1219 [2007], lv denied 9 NY3d 863 [2007];see People v Aikey, 94AD3d 1485, 1487 [2012], lv denied 19 NY3d 956 [2012]). Insofar asdefendant contends that defense counsel was ineffective in failing to object to thetestimony of the People's CSAAS expert, we note that the law is well settled that suchtestimony is permitted (see Spicola, 16 NY3d at 465; see also People vKarst, 166 AD2d 920, 921 [1990], lv denied 76 NY2d 987 [1990]), anddefense counsel thus had no legitimate basis to object (see [*2]People v Wallace, 60 AD3d 1268, 1270-1271[2009], lv denied 12 NY3d 922 [2009]).
Viewing the evidence in light of the elements of the crime as charged to the jury (see People v Danielson, 9NY3d 342, 349 [2007]), we reject defendant's contention that the verdict is againstthe weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495[1987]). Present—Scudder, P.J., Carni, Sconiers, Valentino and Whalen, JJ.