| People v Ruiz |
| 2018 NY Slip Op 01722 [159 AD3d 1375] |
| March 16, 2018 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Beniluis Ruiz, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Erin A. Kulesus of counsel), fordefendant-appellant.
Lawrence Friedman, District Attorney, Batavia (Shirley A. Gorman of counsel), forrespondent.
Appeal from a judgment of the Genesee County Court (Robert C. Noonan, J.), rendered July22, 2015. The judgment convicted defendant upon a jury verdict of, inter alia, sexual abuse in thefirst degree, rape in the third degree and criminal sexual act in the third degree (threecounts).
It is hereby ordered that the judgment so appealed from is unanimously reversed as a matterof discretion in the interest of justice and on the law and a new trial is granted on counts 1, 4, 5and 7 through 12 of the indictment.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of,inter alia, sexual abuse in the first degree (Penal Law § 130.65 [2]), rape in the thirddegree (§ 130.25 [2]), and three counts of criminal sexual act in the third degree(§ 130.40 [2]). The charges arose from defendant's sexual conduct with a relativewhen she was less than 17 years old.
Defendant's motion for a trial order of dismissal was based upon defense counsel's argumentthat the victim, during her testimony, had unspecified "problems with dates," and thus defendantfailed to preserve for our review his present challenges to the legal sufficiency of the evidencesupporting the felony charges (see People v Gray, 86 NY2d 10, 19 [1995]; People v Morse, 111 AD3d 569,570 [1st Dept 2013], lv denied 22 NY3d 1157 [2014]). Viewing the evidence in light ofthe elements of those crimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we concludethat the verdict on the felony charges is not against the weight of the evidence (see generallyPeople v Bleakley, 69 NY2d 490, 495 [1987]). " 'The credibility of the victim andthe weight to be accorded her testimony were matters for the jury,' " and we perceive nobasis to disturb the jury's credibility determinations (People v Robinson, 41 AD3d 1183, 1183 [4th Dept 2007], lvdenied 9 NY3d 880 [2007]).
We reject defendant's contention that County Court erred in denying his motion to precludethe People's expert witness from testifying based upon the lack of timely notice concerning theexpert's testimony. "Pretrial discovery in criminal proceedings is governed by statute," anddefendant identifies no statute requiring the People to provide discovery concerning the identityof the expert or the content of her testimony (People v Thompson, 92 AD3d 1139, 1140 [3d Dept 2012],affd 21 NY3d 555 [2013]). Defendant failed to preserve for our review his furthercontention that the testimony of the expert was improperly admitted in evidence because the jurydid not require expert testimony concerning child sexual abuse accommodation syndrome(CSAAS) (see CPL 470.05 [2]; People v Mason, 162 AD2d 144, 144 [1st Dept1990], lv denied 76 NY2d 860 [1990]), and we decline to exercise our power to reviewthat contention as a matter of discretion in the interest of justice (see CPL 470.15 [6][a]).
Defendant also failed to preserve for our review his contention that the testimony of theexpert was improperly utilized to prove that the charged crimes occurred and to bolster thevictim's testimony. We agree with defendant, however, that the challenged testimony wasimproperly admitted, inasmuch as it was introduced primarily to prove that the charged crimestook place (see People v Knupp, 179 AD2d 1030, 1031-1032 [4th Dept 1992]), and weconclude that the error in its admission "operated to deprive defendant of a fair trial and thuswarrant[s] reversal in the interest of justice" (id. at 1032; see CPL 470.05 [6][a]).
In reaching that conclusion, we acknowledge that expert testimony concerning CSAAS andsimilar psychological syndromes has long been admissible to explain the behavior of a victimthat might be puzzling to a jury (seePeople v Spicola, 16 NY3d 441, 465 [2011], cert denied 565 US 942 [2011]).Here, however, the expert witness did not confine her testimony to "educat[ing] the jury on ascientifically-recognized 'pattern of secrecy, helplessness, entrapment [and] accommodation'experienced by the child victim" (Peoplev Nicholson, 26 NY3d 813, 828 [2016]). Instead, the expert explained "grooming" andother behaviors associated with perpetrators of child sexual abuse. Her detailed description of atypical perpetrator's modus operandi, moreover, closely tracked the victim's testimonyconcerning defendant's conduct, and the prosecutor on summation urged the jury to conclude thatdefendant's interactions with the victim fit the description of a typical perpetrator's conduct asdescribed by the expert. In sum, that part of the testimony of the expert describing the conduct ofa typical perpetrator was not directed at explaining the victim's behavior. Rather, it was presented"for the purpose of proving that the [victim] was sexually abused" (People v Duell, 163AD2d 866, 866 [4th Dept 1990]), which purpose was reinforced by the prosecutor's summation.Inasmuch as we conclude that the challenged expert testimony denied defendant his right to a fairtrial, we reverse the judgment and grant defendant a new trial on counts 1, 4, 5 and 7 through 12of the indictment.
In light of our determination, we do not address defendant's remaining contentions.Present—Whalen, P.J., Smith, Lindley, DeJoseph and Curran, JJ.