| People v Shane |
| 2020 NY Slip Op 06152 [187 AD3d 1219] |
| October 28, 2020 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Clifford Shane, Appellant. |
Paul Skip Laisure, New York, NY (Rebecca J. Gannon of counsel), for appellant.
Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill, William H. Branigan,and Katherine A. Triffon of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Richard L.Buchter, J.), rendered May 17, 2016, convicting him of rape in the first degree, criminal sexualact in the first degree (four counts), sexual abuse in the first degree, and endangering the welfareof a child, upon a jury verdict, and imposing sentence. The appeal brings up for review thedenial, after a hearing (Daniel Lewis, J.), of that branch of the defendant's omnibus motion whichwas to suppress his statements to law enforcement officials.
Ordered that the judgment is affirmed.
The defendant was convicted, after a jury trial, of rape in the first degree, criminal sexual actin the first degree (four counts), sexual abuse in the first degree, and endangering the welfare of achild in relation to conduct perpetrated by the defendant against his stepdaughter.
Contrary to the defendant's contention, the People met their burden of establishing that thedefendant knowingly and voluntarily waived his Miranda rights (see Miranda vArizona, 384 US 436 [1966]) before making statements to law enforcement officials (seeBerghuis v Thompkins, 560 US 370, 382-383 [2010]; People v Thomas, 22 NY3d 629, 641 [2014]). At the suppressionhearing, the testimony of a detective established that the detective gave the defendant writtenMiranda warnings and that the defendant read the written warnings, wrote "yes" andsigned his name next to each of the warnings, and indicated that he understood his rights and waswilling to speak with the detective. This evidence was sufficient to establish a knowing,intelligent, and voluntary waiver (see People v Sirno, 76 NY2d 967, 968 [1990]; People v Fuentes, 185 AD3d 960,961 [2020]; People v Peraza, 288 AD2d 689, 690 [2001]). Accordingly, we agree withthe Supreme Court's determination denying that branch of the defendant's omnibus motion whichwas to suppress his statements to law enforcement officials.
The Supreme Court providently exercised its discretion in permitting the testimony of thePeople's expert witness on the subject of child sexual abuse accommodation syndrome. Theexpert's testimony was properly admitted to explain the issue of delayed disclosure, to counterthe defense claim that the complainant fabricated the sexual abuse allegations, and to explainwhy the complainant might not recall with specificity when certain of the alleged incidentsoccurred (see People v Nicholson,26 NY3d 813, 828-829 [2016]; People v Tebout, 179 AD3d 1099, 1101 [2020]; People v Gopaul, 112 AD3d 966,966 [2013]). Contrary to the defendant's contention, the majority of the expert's testimony neitherbolstered nor vouched for the complainant's credibility, as the expert spoke in general terms anddid not suggest that the charged crimes occurred (see People v Diaz, 20 NY3d 569, 575-576 [2013]; People vTebout, 179 AD3d at 1101). We agree with the defendant, however, that the expert'stestimony did exceed permissible bounds when the prosecutor tailored two hypotheticalquestions to include facts concerning the abuse that occurred in this particular case (see People v Williams, 20 NY3d579, 584 [2013]). However, this error was harmless because the evidence of the defendant'sguilt, which included the complainant's testimony and the defendant's own admissions, wasoverwhelming, and there was no significant probability that, but for the introduction of theerroneous portion of the expert's testimony, the defendant would have been acquitted (seeid. at 585).
The sentence imposed was not unduly harsh or severe (see CPL 470.15 [6] [b]).
In light of our determination, we do not reach the parties' remaining contentions.Scheinkman, P.J., LaSalle, Brathwaite Nelson and Iannacci, JJ., concur.