| People v Lathrop |
| 2019 NY Slip Op 03168 [171 AD3d 1473] |
| April 26, 2019 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Alexander Lathrop, Appellant. |
Timothy P. Donaher, Public Defender, Rochester (David R. Juergens of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Scott Myles of counsel), for respondent.
Appeal from a judgment of the Supreme Court, Monroe County (Francis A. Affronti, J.),rendered October 1, 2013. The judgment convicted defendant, upon a jury verdict, of rape in thethird degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, ofrape in the third degree (Penal Law § 130.25 [2]). Defendant contends that he wasdenied a fair trial because certain portions of the testimony of an expert witness concerning childsexual abuse accommodation syndrome (CSAAS) exceeded permissible bounds of admissibleevidence. It is well settled that expert testimony concerning CSAAS "is admissible to explain thebehavior of child sex abuse victims as long as it is general in nature and does not constitute anopinion that a particular alleged victim is credible or that the charged crimes in fact occurred" (People v Drake, 138 AD3d 1396,1398 [4th Dept 2016], lv denied 28 NY3d 929 [2016]; see People v Diaz, 20 NY3d 569,575-576 [2013]; People v Williams,20 NY3d 579, 583-584 [2013]). Contrary to defendant's contention, we conclude that theexpert's generalized testimony regarding the prevalence of father-daughter relationships in thechild sexual abuse cases that he had worked, which provided further context and support for hisexplanation of CSAAS that child victims may exhibit secrecy and delayed disclosure behaviorswhen the perpetrator is an adult family member such as a parent, did not exceed permissiblebounds (see Diaz, 20 NY3d at 575-576; People v Spicola, 16 NY3d 441, 458, 466 [2011], certdenied 565 US 942 [2011]; People vLoMaglio, 124 AD3d 1414, 1416 [4th Dept 2015], lv denied 25 NY3d 1203[2015]).
Defendant failed to preserve for our review his contention that Supreme Court erred inallowing the expert to testify about the frequency with which perpetrators used physical force inthe child sexual abuse cases that he had worked (see Spicola, 16 NY3d at 465-466; People v Duell, 124 AD3d 1225,1229 [4th Dept 2015], lv denied 26 NY3d 967 [2015]). In any event, that contentionlacks merit. The expert explained that it was rare for a perpetrator to use physical force against achild victim because doing so would discourage continued access to the child; instead, aperpetrator might lie to the child to encourage the child to return and a child might not resistbecause some of the abuse might be "disguised" to the child, e.g., a shoulder rub or massage thatis sexually gratifying for the perpetrator but not perceived as abuse by the child, which causesfurther delay in disclosure. That testimony was admissible inasmuch as it "assisted in explainingvictims' subsequent behavior that the factfinder might not understand, such as why victims mayaccommodate [perpetrators] and why they wait before disclosing the abuse" (Williams,20 NY3d at 584; see Diaz, 20 NY3d at 575; People v Gopaul, 112 AD3d 966, 967 [2d Dept 2013]).
Contrary to defendant's contention, our holding in People v Ruiz (159 AD3d 1375 [4th Dept 2018]) does not require adifferent result. Consistent with Court of Appeals precedent on this issue, Ruiz stands forthe proposition that a court's admission in evidence of expert testimony regarding the behavior ofperpetrators constitutes an abuse of discretion where such testimony is not admitted to assist thefactfinder in understanding victims' unusual behavior, such as accommodation of perpetratorsand delay in disclosure of the abuse, and exceeds permissible bounds by reference to behavior inspecific terms that mirrors the abuse that occurred in that particular case (id. at1376-1377; see Diaz, 20 NY3d at 575-576; Williams, 20 NY3d at 584). Here, theexpert's testimony does not suffer from those deficiencies. "Although some of the testimonydiscussed behavior similar to that alleged by the [victim] in this case, the expert spoke of suchbehavior in general terms" (Diaz, 20 NY3d at 575; see LoMaglio, 124 AD3d at1416; cf. Ruiz, 159 AD3d at 1376-1377).
Defendant's remaining challenge to the expert's testimony is not preserved for our review(see Spicola, 16 NY3d at 465-466; Duell, 124 AD3d at 1229), and we decline toexercise our power to review that challenge as a matter of discretion in the interest of justice(see CPL 470.15 [6] [a]).
Contrary to defendant's further contention, the court did not err in permitting a policeinvestigator to testify that she investigated allegations in a Child Protective Services report thatthe victim had been raped and the suspect was her father. The court properly admitted thatevidence inasmuch as " 'nonspecific testimony about [a] child-victim's reports of sexualabuse [does] not constitute improper bolstering [when] offered for the relevant, nonhearsaypurpose of explaining the investigative process and completing the narrative of events leading tothe defendant's arrest' " (Peoplev Ludwig, 24 NY3d 221, 231 [2014]). Defendant's remaining challenges to theinvestigator's testimony are not preserved for our review (see CPL 470.05 [2]; Peoplev Yelle, 303 AD2d 1043, 1044 [4th Dept 2003], lv denied 100 NY2d 626 [2003]),and we decline to exercise our power to review those challenges as a matter of discretion in theinterest of justice (see CPL 470.15 [6] [a]).
Defendant failed to preserve for our review his contention that he was denied a fair trial byprosecutorial misconduct on summation (see CPL 470.05 [2]; Drake, 138 AD3dat 1398), and we decline to exercise our power to review that contention as a matter of discretionin the interest of justice (see CPL 470.15 [6] [a]). We have reviewed defendant's claimsof ineffective assistance of counsel and conclude that they are without merit (see generally People v Caban, 5 NY3d143, 152 [2005]; People v Baldi, 54 NY2d 137, 147 [1981]).
Finally, defendant contends that he was denied a fair trial by the cumulative effect of theerrors alleged herein. We reject defendant's contention with respect to the preserved allegederrors previously reviewed, and we decline to exercise our power to review his contention withrespect to the unpreserved alleged errors as a matter of discretion in the interest of justice(see CPL 470.15 [6] [a]; Peoplev Terborg, 156 AD3d 1320, 1322 [4th Dept 2017], lv denied 31 NY3d 1018[2018]). Present—Smith, J.P., Peradotto, DeJoseph, Troutman and Winslow, JJ.