| People v Mitchell |
| 2016 NY Slip Op 01701 [137 AD3d 944] |
| March 9, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Kerin Mitchell, Appellant. |
Lynn W. L. Fahey, New York, NY (Nao Terai of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, NY (Leonard Joblove and RuthE. Ross of counsel; Jacquelyn Dainow on the brief), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Garnett, J.), rendered May 10, 2013, convicting him of rape in the third degree, upon ajury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
" '[E]xpert opinion is proper when it would help to clarify an issue calling forprofessional or technical knowledge, possessed by the expert and beyond the ken of thetypical juror' " (People v Taylor, 75 NY2d 277, 288 [1990], quotingDe Long v County of Erie, 60 NY2d 296, 307 [1983]). Contrary to thedefendant's contention, the Supreme Court providently exercised its discretion inpermitting the prosecution to call an expert witness to testify about rape traumasyndrome. The expert's testimony was properly admitted "to explain behavior of a victimthat might appear unusual or that jurors may not be expected to understand" (People vCarroll, 95 NY2d 375, 387 [2000]; see People v Davis, 118 AD3d 906 [2014]; People v Nelson, 40 AD3d1126 [2007]; People vByron, 2 AD3d 453 [2003]). Moreover, the expert "spoke about victims ingeneral and never opined that the defendant committed the crimes, that the victim wassexually abused, or that the victim's specific actions and behavior were consistent withabuse" (People v Rich, 78AD3d 1200, 1202 [2010]; see People v Piedra, 87 AD3d 706 [2011]).
The defendant's contention that certain of the prosecutor's summation remarksdeprived him of a fair trial is unpreserved for appellate review because defense counselfailed to object to those remarks at trial (see People v Singh, 109 AD3d 1010 [2013]; People v Perez, 77 AD3d974 [2010]; People vGill, 54 AD3d 965 [2008]). In any event, the challenged remarks did not exceedthe bounds of rhetorical comment permitted during summation, and constituted either afair response to defense counsel's summation, or fair comment on the evidence presentedor the inferences to be drawn therefrom (see People v Webster, 126 AD3d 821 [2015]; People v Scurry, 123 AD3d949 [2014]; People vMarcus, 112 AD3d 652 [2013]; People v Cephas, 91 AD3d 668 [2012]; People v Beam, 78 AD3d1067 [2010]; People vWhitehurst, 70 AD3d 1057 [2010]).
Furthermore, defense counsel's failure to object to the prosecutor's remarks during[*2]summation did not deprive the defendant of theeffective assistance of counsel (see People v Carter, 130 AD3d 1060 [2015]; People v Lenoir, 57 AD3d802 [2008]). Dillon, J.P., Cohen, Maltese and Barros, JJ., concur.