| People v Meyers |
| 2020 NY Slip Op 06897 [188 AD3d 1732] |
| November 20, 2020 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Donald R. Meyers, Appellant. |
James S. Hinman, Rochester, for defendant-appellant.
Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Melchor E. Castro, A.J.), renderedFebruary 3, 2017. The judgment convicted defendant upon a jury verdict of course of sexualconduct against a child in the first degree, criminal sexual act in the second degree and sexualabuse in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him following a jury trial ofcourse of sexual conduct against a child in the first degree (Penal Law § 130.75 [1][b]), criminal sexual act in the second degree (§ 130.45 [1]), and sexual abuse in thesecond degree (§ 130.60 [2]). In the indictment and bill of particulars, the Peoplealleged that the course of sexual conduct against the child occurred "[o]n or about and betweenJuly 30, 2010 and June 25, 2014." Despite a demand from the prosecution, defendant neverserved any notice of alibi pursuant to CPL 250.20 (1). During the first trial, which ended in amistrial, and again at the second trial, the People established that the night of July 30, 2010, wasthe night that defendant's friend passed away and the night that one of the acts of sexual conductoccurred. That friend's father testified at the first trial that defendant was at the friend's house forsome period of time that night. At the second trial, defendant again called the friend's father totestify, and he testified that defendant was at the friend's house until 1:00 a.m. on the night of thefriend's death. Defendant thereafter sought to have his sister testify that she picked up defendantfrom the friend's house and that defendant spent the remainder of that night at her house. CountyCourt precluded that testimony on the ground that defendant failed to file any notice of alibi. Wereject defendant's contention that the court abused its discretion in precluding that alibitestimony.
Contrary to defendant's contention, the testimony constituted alibi evidence inasmuch as thevictim testified at the second trial that defendant arrived at the location where the victim wasstaying between 10:00 p.m. and 11:00 p.m. on that night and that, sometime during that night, hecommitted acts of oral and anal sexual conduct against her. Given that the crime occurredsometime after 10 or 11 p.m. and the testimony of defendant's sister would have placed him at adifferent location during the time frame of one of the "particular incident[s]" of the continuingcrime (Matter of Block v Ambach, 73 NY2d 323, 334 [1989]), we conclude that thenotice requirements of CPL 250.20 (1) applied (cf. People v Hicks, 94 AD3d 1483, 1484 [4th Dept 2012];People v Bennett, 128 AD2d 540, 540 [2d Dept 1987], lv denied 69 NY2d 1001[1987]).
We further conclude that the court did not abuse its discretion in precluding that alibievidence (see CPL 250.20 [3]). There was no "good cause" for defendant's failure to file anotice of alibi (CPL 250.20 [1]). Even if defense counsel did not learn of the sister's potentialalibi testimony until the second trial, defendant would have known from the time of the first trial,i.e., when a date in the indictment was linked to a specific event, whether he was with anyone onthat night (see People v Batchilly,33 AD3d 360, 361 [1st Dept 2006], lv denied 7 NY3d 900 [2006], deniedreconsideration 8 NY3d 878 [2007]; People v Whitehead, 305 AD2d 286, 287 [1stDept 2003], lv denied 100 NY2d 600 [2003]). In our view, "[t]he emergence of the alibiwitness at the eleventh hour indicated that her proposed testimony was a product of recentfabrication . . . and warrants a finding of willful conduct on the part of defendant,personally" (People v Walker, 294 AD2d 218, 219 [1st Dept 2002], lv denied 98NY2d 772 [2002]; see Batchilly, 33 AD3d at 361).
We further conclude that the court did not err in permitting expert testimony on child sexualabuse accommodation syndrome (CSAAS) at the second trial even though it had precluded suchtestimony at the first trial. Such testimony helped to explain the victim's behavior during theyears of sexual abuse (see generallyPeople v Spicola, 16 NY3d 441, 465 [2011], cert denied 565 US 942 [2011])and, contrary to defendant's contention, it did not serve to bolster the victim's testimony (cf. People v Ruiz, 159 AD3d 1375,1376 [4th Dept 2018]).
Defendant finally contends that he was denied effective assistance of counsel based ondefense counsel's failure to file an alibi notice and failure "to identify, or utilize an expert inrelation" to the CSAAS testimony. We reject that contention. With respect to the failure to secureopposition CSAAS testimony, " '[d]efendant has not demonstrated that such testimonywas available, that it would have assisted the jury in its determination or that he was prejudicedby its absence' " (People vKilbury, 83 AD3d 1579, 1580 [4th Dept 2011], lv denied 17 NY3d 860 [2011];see People v Englert, 130 AD3d1532, 1533 [4th Dept 2015], lv denied 26 NY3d 967 [2015], lv denied 26NY3d 1144 [2016]). Defendant's contention with respect to defense counsel's failure to file analibi notice involves matters outside the record on direct appeal and, as a result, must be raised ina CPL 440.10 motion (see e.g. People v Williams [appeal No. 2], 175 AD3d 980, 981[4th Dept 2019], lv denied 34 NY3d 1020 [2019]; People v Almonte, 171 AD3d 470, 471 [1st Dept 2019], lvdenied 33 NY3d 1102 [2019]). Viewing the evidence, the law, and the circumstances of thiscase in totality and as of the time of the representation, we conclude that defendant receivedmeaningful representation (see generally People v Baldi, 54 NY2d 137, 147 [1981]).Present—Peradotto, J.P., Carni, Lindley, Curran and Bannister, JJ.