| People v Craig |
| 2020 NY Slip Op 05916 [187 AD3d 1039] |
| October 21, 2020 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Earlin T. Craig, Appellant. |
Paul Skip Laisure, New York, NY (Angad Singh of counsel), for appellant.
Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill, Joseph N. Ferdenzi,and Roni C. Piplani of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Richard L.Buchter, J.), rendered September 30, 2015, convicting him of sexual abuse in the first degree,upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's contention that a mode of proceedings error occurred because the SupremeCourt did not comply precisely with CPL 310.30 in accordance with the requirements ofPeople v O'Rama (78 NY2d 270 [1991]) in response to a jury note is without merit. Thedefendant and defense counsel were clearly afforded meaningful notice of the jury's noterequesting a readback of the defendant's testimony prior to the time the court gave the jury anysubstantive information or instruction (see People v Lykes, 81 NY2d 767, 770 [1993]).The court's initial response was simply a ministerial communication that a readback of thedefendant's testimony would commence after lunch, which "is not the kind of substantiveresponse that implicates O'Rama" (People v Mays, 20 NY3d 969, 971 [2012]; see People v Gerrara, 88 AD3d811, 813 [2011]). It "conveyed no information pertaining to the law or facts of the case, anddid not limit or channel the jury's question, explicitly leaving open the possibility that the jurywanted 'something else' " (People v Lykes, 81 NY2d at 770). During the lunchrecess, however, the jury sent the court a second note indicating that it had reached a verdict. Thedefendant and defense counsel were notified of both notes immediately upon their return fromthe lunch recess and the contents of the notes were read into the record in the presence of thedefendant, defense counsel, and the prosecutor. When the jurors entered the courtroom, the courtformally responded to the notes by inquiring whether the jury still desired a readback and, uponlearning that they did not and had reached a verdict, taking the verdict. The defendant did notobject to the inquiry or the procedure employed by the court. Under these circumstances, defensecounsel had an opportunity to participate in the formulation of a substantive response to therequest for a readback of his testimony before any formal response was given, and therequirements of CPL 310.30 were not violated (see People v Lykes, 81 NY2d at 770;see also People v Mays, 20 NY3d at 971).
The defendant's contention that the count of the indictment charging sexual abuse in the firstdegree was rendered duplicitous by trial testimony is unpreserved for appellate review(see CPL 470.05 [2]; People vBecoats, 17 NY3d 643, 650-651 [2011]; People v Bentley, 186 AD3d 844, 844-845 [2020]), and we declineto reach it in the exercise of our interest of justice jurisdiction (see CPL 470.15 [6] [a]; People v Adams, 140 AD3d 1179[2016]).
The defendant failed to preserve for appellate review his contention that certain testimonyconcerning the complainant's disclosures of sexual abuse constituted improper bolstering(see CPL 470.05 [2]; People vLove, 182 AD3d 561 [2020]), and we decline to review that contention in the exerciseof our interest of justice jurisdiction (seePeople v Smith, 48 AD3d 489 [2008]).
The defendant's contention that certain remarks made by the prosecutor during summationrequire reversal is unpreserved for appellate review, since the defendant completely failed toobject to the remarks at issue and failed to make a timely motion for a mistrial on the specificgrounds he now asserts on appeal (see CPL 470.05 [2]; People v Romero, 7 NY3d 911,912 [2006]; People v Willis, 165AD3d 984, 985 [2018]), and we decline to review it in the exercise of our interest of justicejurisdiction (see People v Jones, 139AD3d 878, 880 [2016]).
The defendant's contention that the Supreme Court should have given a limiting instructionregarding the testimony concerning the complainant's sexual abuse disclosures is without merit.The court expressly precluded the witnesses from providing specific details regarding thedisclosures and twice instructed the jury that the testimony was not offered for its truth (see People v Honghirun, 29 NY3d284, 287-288 [2017]). Accordingly, the defendant was not prejudiced by the admission ofthis testimony and was not deprived of a fair trial on this basis.
The Supreme Court providently exercised its discretion in admitting testimony of thePeople's expert concerning the behavior of child sexual abuse victims. The expert spoke ingeneral terms, noting that she had never met or treated the complainant, and "the testimonyassisted in explaining the behavior of the [complainant] following the alleged abuse that the jurymight not otherwise understand" (Peoplev Taylor, 165 AD3d 707, 709 [2018]; see People v Simms, 178 AD3d 963, 965 [2019]).
The defendant's contention that he was deprived of the effective assistance of counselbecause his counsel failed to object to certain testimony, certain of the prosecutor's summationcomments, and the Supreme Court's charge regarding the count of the sexual abuse in the firstdegree is without merit. Defense counsel was not ineffective for failing to make a futile objection(see People v Stultz, 2 NY3d277, 287 [2004]). Viewed in their totality, the circumstances reveal that defense counselprovided meaningful representation (see Strickland v Washington, 466 US 668 [1984];People v Clark, 28 NY3d 556,562-563 [2016]). Scheinkman, P.J., Dillon, Austin and Miller, JJ., concur.