| People v Gooley |
| 2017 NY Slip Op 09197 [156 AD3d 1231] |
| December 28, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v James M.Gooley, Also Known as James Murray, Also Known as James Gooley Murray,Appellant. |
Robert W. Linville, Public Defender, Hudson (Jessica Howser of counsel), for appellant.
Paul Czajka, District Attorney, Hudson (James A. Carlucci of counsel), for respondent.
Rumsey, J. Appeal from a judgment of the County Court of Columbia County (Koweek, J.),rendered August 22, 2014, upon a verdict convicting defendant of the crime of sexual abuse inthe first degree.
Defendant was charged by indictment with the crimes of criminal sexual act in the firstdegree, two counts of criminal sexual act in the second degree and three counts of sexual abusein the first degree based on allegations that he had sexually abused the grandson andgranddaughter of his long-term girlfriend. Upon a jury trial, defendant was convicted of onecount of sexual abuse in the first degree as it related to the grandson (hereinafter the victim) forconduct occurring in 2004, when the victim was nine years old; he was acquitted of theremaining charges. He was sentenced to a prison term of seven years, with 10 years ofpostrelease supervision. Defendant now appeals.
Defendant first argues that his constitutional right to confront the witnesses against him wasviolated by County Court's limitation of the scope of his cross-examination of thevictim—who was 19 years old at the time of trial—regarding the victim's home life,which defendant's counsel characterized as "turbulent," and the victim's hospitalizations formental health issues. A defendant has the constitutional right to confront witnesses throughcross-examination (see People vStahl, 141 AD3d 962, 964 [2016], lv denied 28 NY3d 1127 [2016], certdenied 583 US[*2]&mdash, 138 S Ct 222 [2017]; People v Tirado, 109 AD3d 688,689 [2013], lv denied 22 NY3d 959 [2013], cert denied 574 US &mdash, 135 SCt 183 [2014]); however, that right is not absolute (see People v Corby, 6 NY3d 231, 234 [2005]). Upon reviewing therecord, we conclude that the court permitted sufficient cross-examination of the victim withrespect to those topics. The court permitted inquiry into the victim's living situation during therelevant time period and, in response to questions posed during cross-examination, the victimtestified that there were "many occasions where [his parents] had split up," and described how hehad lived in the homes of several different family members, including his mother and bothgrandmothers, often for short periods of time. In light of the scope of cross-examination that waspermitted on this issue, the court properly denied defendant's request to admit Family Courtrecords. With respect to the victim's history of treatment and hospitalization for mental healthissues, County Court permitted cross-examination regarding the victim's psychiatrichistory—including questions about whether he had suffered from depression or hadexperienced suicidal thoughts—and the victim admitted that he had received counselingfor depression when he was 15 years old. In response to questions regarding his use of alcoholand drugs, he admitted to the use of marihuana. In light of the scope of cross-examinationpermitted, and based on our review of the record, we conclude that the court did not err indenying defendant's request to admit records related to the victim's record of treatment andhospitalization for mental health issues to impeach his credibility (see e.g. People v Bowman, 139 AD3d1251, 1254 [2016], lv denied 28 NY3d 927 [2016]; People v Tirado, 109AD3d at 689).
We also reject defendant's contention that County Court erred in allowing an expert witnessto testify regarding child sexual abuse accommodation syndrome. It is well-accepted that suchtestimony may be admitted "to explain a victim's behavior that jurors might otherwisemisunderstand or perceive as unusual, such as a child's failure to promptly report abuse" (People v Pomales, 49 AD3d 962,964 [2008] [internal quotation marks and citations omitted], lv denied 10 NY3d 938[2008]; see People v Gregory, 78AD3d 1246, 1247 [2010], lv denied 16 NY3d 831 [2011]; People v Maggio, 70 AD3d 1258,1260-1261 [2010], lv denied 14 NY3d 889 [2010]; People v Higgins, 12 AD3d 775, 778 [2004], lv denied 4NY3d 764 [2005]). Here, the expert testified that she had never met either child or defendant, norhad she reviewed any information specifically pertaining to this case. Her testimony wasappropriately limited to educating the jury about child sexual abuse accommodation syndromegenerally, and defendant was afforded the opportunity to cross-examine the expert witness.Under such circumstances, the testimony was properly admitted.
Defendant's contention that County Court erred in continuing the trial in his absence alsolacks merit. A defendant who appears at trial but thereafter voluntarily absents himself or herselfforfeits the right to be present for the remainder of the trial (see People v Sanchez, 65NY2d 436, 443-444 [1985]; People v Reed, 148 AD2d 809, 810 [1989]; People vRios, 126 AD2d 860, 862 [1987]). Defendant was present at trial through the close of proof.On August 8, 2014, when closing arguments and the final instructions to the jury were scheduled,defendant was hospitalized due to serious injuries that he sustained in a single-vehicleautomobile accident. With the consent of defendant and the People, the court conferred withdefendant's treating physician, who advised that defendant had sustained multiple fractures, wasreceiving dialysis as a result of having ingested antifreeze and would likely be hospitalized forseveral weeks. The court also heard testimony from a paramedic who interviewed defendant atthe accident scene and testified that defendant had stated that he drank coffee infused withantifreeze on the morning of the accident in an effort to harm himself and, further, that he wasnot wearing a seat belt at the time of the accident. We conclude that the court properlydetermined that such evidence demonstrated that defendant's absence was voluntary and,therefore, properly continued the trial in his absence.
[*3] Lastly, we find no merit to defendant's contention that his sentence was harsh andexcessive in light of the facts that he had no prior criminal history and was 70 years old when hewas sentenced. Given the age of the victim and defendant's complete lack of remorse for hisabuse of a child entrusted to his care, we do not find any extraordinary circumstances or an abuseof discretion that warrants modification of County Court's imposition of the maximum permittedsentence (see People v Adams, 135AD3d 1154, 1158 [2016], lv denied 27 NY3d 990 [2016]; People v Sorrell, 108 AD3d 787,794 [2013], lv denied 23 NY3d 1025 [2014]).
Egan Jr., J.P., Rose, Devine and Mulvey, JJ., concur. Ordered that the judgment isaffirmed.