| People v Carter |
| 2017 NY Slip Op 04855 [151 AD3d 877] |
| June 14, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Fitz Carter, Appellant. |
Herman Kaufman, Rye, NY, for appellant.
Anthony A. Scarpino, Jr., District Attorney, White Plains, NY (John J. Carmody and StevenA. Bender of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Westchester County (Warhit,J.), rendered October 7, 2014, convicting him of attempted rape in the first degree, sexual abusein the first degree, attempted rape in the second degree, and endangering the welfare of a child,upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's challenge to the legal sufficiency of the evidence is unpreserved for appellatereview (see CPL 470.05 [2];People v Hawkins, 11 NY3d 484 [2008]). In any event, viewing the evidence in the lightmost favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), we findthat it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt.Moreover, upon our independent review pursuant to CPL 470.15 (5), we are satisfied that theverdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).
The defendant's contentions that the People elicited improper bolstering testimony frompolice officers and a medical doctor are unpreserved for appellate review (see CPL470.05 [2]). In any event, the testimony was properly admitted as background information toexplain the events that led to the defendant's arrest (see People v Gross, 26 NY3d 689, 695 [2016]; People v Brody, 82 AD3d 784[2011]; People v Walker, 70 AD3d870 [2010]). The victim's statements to the medical doctor were relevant to diagnosis andtreatment and were properly admitted (see People v Spicola, 16 NY3d 441, 451 [2011]; People v Ortega, 15 NY3d 610,620 [2010]; People v Dumancela,136 AD3d 1053, 1053 [2016]).
The defendant's challenge to the expert testimony of psychologist Donald Lewittes isunpreserved for appellate review. In any event, the County Court providently exercised itsdiscretion in permitting the testimony of Lewittes on the subject of intra-familial child adolescentsexual abuse syndrome. "Expert testimony is properly admitted if it helps to clarify an issuecalling for professional or technical knowledge, possessed by the expert and beyond the ken ofthe typical juror" (People v Gopaul,112 AD3d 966, 966 [2013] [internal quotation marks omitted]; see People v Williams, 20 NY3d579, 583 [2013]; People vDavis, 118 AD3d 906, 907-908 [2014]). "[E]xpert testimony regarding rape traumasyndrome, abused child syndrome or similar conditions may be admitted to explain behavior of avictim that 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 at 907-908). [*2]Lewittes' testimony was properly admitted to explain why a childmay recant an allegation of sexual abuse (see People v Nicholson, 26 NY3d 813 [2016]; People vWilliams, 20 NY3d at 584; People v Carroll, 95 NY2d at 387; People v Adams, 135 AD3d 1154,1157 [2016]; People v Davis, 118 AD3d at 907-908; People v Gopaul, 112 AD3dat 966).
The defendant's contentions regarding the People's use of grand jury testimony to impeachtheir own witness pursuant to CPL 60.35 are unpreserved for appellate review. In any event, theCounty Court providently exercised its discretion in permitting the People to impeach the victimwith her grand jury testimony (seePeople v Fountain, 102 AD3d 887 [2013]; People v Picente, 35 AD3d 1210, 1211 [2006]; People v Dalton, 27 AD3d 779,782 [2006]; People v Wieber, 202 AD2d 789, 790 [1994]; People v Broomfield,163 AD2d 403, 403-404 [1990]).
The defendant's contentions regarding the DNA evidence are unpreserved for appellatereview and, in any event, without merit (see People v Ortiz, 80 AD3d 628, 630 [2011]).
The defendant's claim that he was deprived of the constitutional right to the effectiveassistance of counsel is based, in part, on matter appearing on the record and, in part, on matteroutside the record, and thus constitutes a "mixed claim" of ineffective assistance (People v Maxwell, 89 AD3d 1108,1109 [2011]; see People v Evans, 16NY3d 571, 575 [2011]). In this case, it is not evident from the matter appearing on therecord that the defendant was deprived of the effective assistance of counsel (cf. People vCrump, 53 NY2d 824 [1981]; People v Brown, 45 NY2d 852 [1978]). Since thedefendant's claim of ineffective assistance cannot be resolved without reference to matter outsidethe record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in itsentirety (see People v Freeman, 93AD3d 805, 806 [2012]; People v Maxwell, 89 AD3d at 1109; People v Rohlehr, 87 AD3d 603,604 [2011]).
The defendant's remaining contentions are unpreserved for appellate review and, in anyevent, without merit. Dillon, J.P., Cohen, Duffy and Connolly, JJ., concur.