| People v Gross |
| 2019 NY Slip Op 03362 [172 AD3d 741] |
| May 1, 2019 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Marcus Gross, Appellant. |
Gary E. Eisenberg, New City, NY, for appellant, and appellant pro se.
Anthony A. Scarpino, Jr., District Attorney, White Plains, NY (Jennifer Spencer, William C.Milaccio, and Steven A. Bender of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Westchester County (RoryJ. Bellantoni, J.), rendered April 5, 2007, convicting him of course of sexual conduct against achild in the first degree and endangering the welfare of a child, upon a jury verdict, and imposingsentence.
Ordered that the judgment is affirmed.
The defendant was charged with, inter alia, course of sexual conduct against a child in thefirst degree and endangering the welfare of a child. The complainant was the defendant'sdaughter who, at the time of the alleged offenses, was between the ages of four and eight. Attrial, the People presented, inter alia, the testimony of the complainant, who was then 10 yearsold, and the defendant's ex-girlfriend, who had witnessed and been forced to participate in thesexual conduct against the complainant. The People also presented expert medical testimony thatthe lack of observable physical injury to the complainant's genitals was not inconsistent with herallegations. The defendant, who contended that the lack of physical findings of injuryundermined the charges against him, presented a medical expert who questioned the conclusionof the People's expert and opined that the sex acts alleged would have caused physical injury. Ajury found the defendant guilty of the charges alleging crimes committed against the complainantand acquitted him of unconnected charges alleging crimes committed against hisex-girlfriend.
Contrary to the defendant's contention, the Supreme Court's Sandoval ruling (seePeople v Sandoval, 34 NY2d 371 [1974]) permitting the People to present evidence of priorconvictions for impeachment purposes, was a provident exercise of its discretion, and thedefendant was not deprived of a fair trial (see People v Smith, 18 NY3d 588, 593 [2012]; People v Grant, 7 NY3d 421, 424[2006]). The court also providently exercised its discretion in permitting the People to elicittestimony regarding uncharged crimes, because the evidence was relevant backgroundinformation that placed the charged conduct in context and because the probative value of thatevidence outweighed the risk of prejudice to the defendant (see People v Frumusa, 29 NY3d 364, 369 [2017]; People v Leonard, 29 NY3d 1, 6[2017]; People v Cass, 18 NY3d553, 559 [2012]; People v Molineux, 168 NY 264, 293 [1901]). In addition, thecourt's limiting instruction to the jury served to alleviate any prejudice from the admission of thatevidence (see People v Hankerson,165 AD3d 1285, 1287 [2018]; People v Beer, 146 AD3d 895, 896 [2017]; People v Bell, 136 AD3d 838, 839[2016]).
"[A] prospective juror whose statements raise a serious doubt regarding the ability to beimpartial must be excused unless the juror states unequivocally on the record that he or she canbe fair and impartial" (People vWarrington, 28 NY3d 1116, 1119-1120 [2016] [internal quotation marks omitted]; see People v Harris, 19 NY3d 679,685 [2012]; People v Johnson, 17NY3d 752, 753 [2011]). To satisfy the requirement for a clear assurance of impartiality, "aprospective juror must, first and foremost, in unequivocal terms, 'expressly state that his [or her]prior state of mind concerning either the case or either of the parties will not influence [the]verdict' " (People v Warrington, 28 NY3d at 1120, quoting People vBiondo, 41 NY2d 483, 485 [1977]; see People v Arnold, 96 NY2d 358, 362[2001]).
Here, although a certain prospective juror initially expressed doubt as to whether her pastexperiences would influence her view of the evidence, she ultimately provided an unequivocalassurance that she would fairly evaluate the evidence. Because the Supreme Court found thisprospective juror's assurances credible, it had the discretion to deny the defendant's challenge forcause (see People v Arnold, 96 NY2d at 363; People v Hoffmann, 122 AD3d 945 [2014]; People v Williams, 107 AD3d 746,747 [2013]).
As a general rule, " 'evidence that a victim of sexual assault promptly complainedabout the incident is admissible to corroborate the allegation that an assault took place' "(People v Rosario, 17 NY3d501, 511 [2011], quoting People v McDaniel, 81 NY2d 10, 16 [1993]; see People v Evangelista, 155 AD3d972 [2017]; People v Caban,126 AD3d 808 [2015]). A victim's outcry is prompt if it is made " 'at the firstsuitable opportunity,' " which is "a relative concept dependent on the facts," so that "whatmight qualify as prompt in one case might not in another" (People v McDaniel, 81 NY2dat 17, quoting People v O'Sullivan, 104 NY 481, 486 [1887]; see People vRosario, 17 NY3d at 512-513; People v Evangelista, 155 AD3d at 972; People vCaban, 126 AD3d at 808). "The prompt outcry rule—an exception to theinadmissibility of the prior consistent statements of an unimpeached witness—'permitsevidence that a timely complaint was made,' but does not allow further testimony as to the 'detailsof the incident' " (People v Rosario, 17 NY3d at 511, quoting People vRice, 75 NY2d 929, 932 [1990]).
Here, the defendant failed to preserve for appellate review his contention that thecomplainant's outcry was not prompt (see People v Gurdon, 153 AD3d 1430 [2017]; People v Honghirun, 133 AD3d882 [2015], affd 29 NY3d 284 [2017]; People v Jean, 117 AD3d 875, 878 [2014]). In any event, the outcrywas prompt since the complainant, who was only four years old when the abuse began and waseight years old at the time of her outcry, made the outcry while the abuse was ongoing (seePeople v Evangelista, 155 AD3d at 972-973; People v Caban, 126 AD3d at 808). Thetestimony regarding the complainant's outcry, consisting of her report that the defendant hadraped her, "did not exceed the allowable level of detail" (People v McDaniel, 81 NY2d at18).
The defendant's contention that certain remarks made by the prosecutor during her openingstatement and summation were improper is without merit, as the challenged remarks wereresponsive to arguments raised by the defendant's counsel during summation or constituted faircomment on the evidence (see People vHogue, 166 AD3d 1009 [2018]; People v Lowe, 166 AD3d 901 [2018]; People v Brooks, 165 AD3d 1280[2018]; People v Giddens, 163AD3d 990, 991 [2018]).
The defendant's contention that he was deprived of the effective assistance of counsel isbased, in part, on matter appearing on the record and, in part, on matter outside the record and,thus, constitutes a "mixed claim" of ineffective assistance (People v Maxwell, 89 AD3d 1108, 1109 [2011]; see People v Evans, 16 NY3d 571,575 n 2 [2011]). As the defendant's claim of ineffective assistance of counsel cannot be resolvedwithout reference to matter outside the record, a CPL 440.10 proceeding is the appropriate forumfor reviewing the claim in its entirety (see People v Freeman, 93 AD3d 805, 806 [2012]; People vMaxwell, 89 AD3d at 1109).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]).
The defendant's contention regarding his proffered expert is unpreserved for appellate reviewand, in any event, without merit.
The defendant's remaining contentions, including those raised in his pro se supplementalbrief, either are unpreserved for appellate review (see CPL 470.05 [2]; see generally People v Medina, 18NY3d 98, 104 [2011]; People v Gray, 86 NY2d 10, 19 [1995]), and we decline toreach them in the exercise of our interest of justice jurisdiction, or have been waived (see People v Troche, 159 AD3d735, 738 [2018]; People v Gurdon, 153 AD3d at 1430; People v Honghirun,133 AD3d at 883). Leventhal, J.P., Roman, Maltese and Iannacci, JJ., concur.