| People v Austen |
| 2021 NY Slip Op 04798 [197 AD3d 861] |
| August 26, 2021 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Ye Min T. Austen, Also Known as Ye Min Thet Austen,Appellant. |
Jeffrey Wicks, PLLC, Rochester (Jeffrey Wicks of counsel), for defendant-appellant.
Sandra Doorley, District Attorney, Rochester (Kaylan Porter of counsel), for respondent.
Appeal from a judgment of the Supreme Court, Monroe County (Alex R. Renzi, J.), renderedJanuary 31, 2018. The judgment convicted defendant, upon a jury verdict, of rape in the firstdegree and course of sexual conduct against a child in the first degree.
It is hereby ordered that the judgment so appealed from is affirmed.
Memorandum: Defendant appeals from a judgment convicting him, following a jury trial, ofrape in the first degree (Penal Law § 130.35 [4]) and course of sexual conductagainst a child in the first degree (§ 130.75 [1] [b]). We reject defendant'scontention that he was deprived of a fair trial by the prosecutor's failure to produce avideo-recorded statement of the victim until one week prior to trial. Defendant does not disputethat the recording constitutes Rosario material. Under the discovery rules in effect at thetime of defendant's trial, "[w]here, as here, [a] witness[ ] [is] not called to testify at a pretrialhearing, Rosario material need not be disclosed until '[a]fter the jury has been sworn andbefore the prosecutor's opening address' " (Matter of Doorley v Castro, 160 AD3d 1381, 1383 [4th Dept 2018],quoting CPL former 240.45 [1] [a]). Neither party requested that this Court consider theretroactivity of the new discovery statute now in effect.
Defendant contends that defense counsel was ineffective for failing to object at trial toalleged hearsay testimony from the investigating police officer. We reject that contention. Failureto "to make a motion or argument that has little or no chance of success" does not constituteineffective assistance (People vPatterson, 115 AD3d 1174, 1175 [4th Dept 2014], lv denied 23 NY3d 1066[2014] [internal quotation marks omitted]) and, here, the officer's testimony about the victim'sreports of sexual abuse was admissible " 'for the relevant, nonhearsay purpose ofexplaining the investigative process and completing the narrative of events leading to. . . defendant's arrest' " (People v Ludwig, 24 NY3d 221, 231 [2014]). Likewise, weconclude that defense counsel's failure to object to the admission in evidence of text messages onhearsay grounds did not constitute ineffective assistance because, even assuming, arguendo, thatthe text messages constituted hearsay evidence, any error " 'was at most a mistakenjudgment as to trial strategy and cannot be characterized as ineffective assistance ofcounsel' " (People v Simms, 244 AD2d 920, 921 [4th Dept 1997], lvdenied 91 NY2d 897 [1998]).
We reject defendant's further contention that Supreme Court erred in denying his motion topreclude the People's expert witness from testifying regarding child sexual abuse accommodationsyndrome (CSAAS). Such testimony is admissible "for the purpose of explaining behavior thatmight be puzzling to a jury" (People vSpicola, 16 NY3d 441, 465 [2011], cert denied 565 US 942 [2011]; see People v Nicholson, 26 NY3d813, 828 [2016]; People vGraham, 171 AD3d 1566, 1570 [4th Dept 2019], lv denied 33 NY3d 1104[2019]). [*2]Contrary to defendant's contention, the experttestimony did not exceed permissible bounds inasmuch as the expert spoke of the subject matterin general terms and expressly declined to provide an opinion regarding the victim's credibility orwhether she was in fact a victim of sexual abuse (see People v Lathrop, 171 AD3d 1473, 1473-1474 [4th Dept 2019],lv denied 33 NY3d 1106 [2019]). We reject defendant's contention that CSAAS is nolonger generally accepted in the relevant scientific community. Although a small number of otherstate courts do not allow expert testimony on CSAAS (see e.g. State of New Jersey vJ.L.G., 234 NJ 265, 289, 303, 190 A3d 442, 456, 464 [2018]), the record here provides nobasis for us to reach a similar conclusion (see Spicola, 16 NY3d at 466). We thereforeconclude that the court did not abuse its discretion in permitting the expert testimony (see People v Meir, 178 AD3d1452, 1453 [4th Dept 2019], lv denied 35 NY3d 972 [2020]).
All concur except Smith, J.P., who concurs in the result in the following memorandum.
Smith, J.P. (concurring). I agree with the majority's determination to affirm the judgment ofconviction, but I write to address an issue of law that the majority has not discussed. Defendantcontends that Supreme Court erred in permitting the prosecution to provide certainRosario materials one week before the start of the trial, and the majority concludes thatthe materials were properly provided "[u]nder the discovery rules in effect at the time ofdefendant's trial," without discussing whether we are to apply those rules (see CPLformer 240.45 [1] [a]), or the amended discovery rules enacted in 2019 (see CPL 245.10[1] [a]; 245.20). I cannot agree that we may resolve this appeal without addressing thatissue.
Defendant summarily contends that the former discovery statute applies to this case, and thePeople implicitly concede that this is so. It is well settled that such a "concession does not,however, relieve us from the performance of our judicial function and does not require us toadopt the proposal urged upon us" (People v Berrios, 28 NY2d 361, 366-367 [1971]; see People v Colsrud, 144 AD3d1639, 1640 [4th Dept 2016], lv denied 29 NY3d 1030 [2017]; see also Matter of Knavel v West SenecaCent. Sch. Dist., 149 AD3d 1614, 1616 [4th Dept 2017], lv dismissed 29 NY3d1116 [2017]), inasmuch as an appellate court is not bound by "the erroneous concession of alegal principle" (People v Diviesti,101 AD3d 1163, 1164 n [3d Dept 2012], lv denied 20 NY3d 1097 [2013]). Indeed,where appropriate this Court has rejected incorrect concessions by the People (see e.g. People v Morrison, 179 AD3d1454, 1455 [4th Dept 2020], lv denied 35 NY3d 972 [2020]; People v Adair, 177 AD3d 1357,1357 [4th Dept 2019], lv denied 34 NY3d 1125 [2020]; People v Wilson, 175 AD3d 1800,1801 [4th Dept 2019]). Thus, although appellate courts "have no quarrel with a litigant concedingan issue of fact . . . , or conceding that a bill of particulars is sufficiently specific. . . , or waiving a beneficial right . . . [, t]hose types of concessions donot intrude upon the judicial function of correctly identifying and applying the law to the facts"(Knavel, 149 AD3d at 1616). Therefore here, as in any appeal, it is our judicial functionto "correctly identify[ ] and apply[ ] the law to the facts" (id.). Upon performing thatfunction, however, I conclude that the new discovery rules should not be applied retroactively,thus I join the majority in voting to affirm.
At the time of trial, CPL former 240.45 (1) (a) required that the People provideRosario material "[a]fter the jury has been sworn and before the prosecutor's openingaddress" (id.; see Matter ofDoorley v Castro, 160 AD3d 1381, 1383 [4th Dept 2018]). The CPL was amended in2019 so that such materials must be provided within 20 to 35 days of arraignment upon anindictment, depending on whether the defendant is in or out of custody (see CPL 245.10[1] [a]; see also 245.20). Pursuant to the enacting session law, the new discovery rulestook effect January 1, 2020 (see L 2019, ch 59, part LLL, §§ 1, 2, 14),or approximately 8
In determining whether to apply a statutory amendment retroactively, the courts mustascertain whether that was what legislature intended, and inasmuch " '[a]s the clearestindicator of legislative intent is the statutory text, the starting point in any case of interpretationmust always be the language itself, giving effect to the plain meaning thereof' " (Matter of Raynor v Landmark Chrysler,18 NY3d 48, 56 [2011]; see Peoplev M.E., 121 AD3d 157, 160 [4th Dept 2014]). Thus, " '[i]t is well settled. . . that a statute will not be given a retroactive construction unless an intention tomake it retroactive is to be deduced from its wording, and a law will not [*3]receive a retroactive construction unless its language, eitherexpressly or by necessary implication, requires that it be so construed. A clear expression of thelegislative purpose is required to justify a retrospective application' " (People v Lawrence, 80 AD3d1011, 1012 [3d Dept 2011]; see e.g.People v Stephenson, 34 AD3d 983, 983 [3d Dept 2006]).
In general, amendments to procedural statutes apply retroactively (see People vAnderson, 306 AD2d 536, 536-537 [2d Dept 2003], lv denied 1 NY3d 594 [2004];see generally McKinney's Cons Laws of NY, Book 1, Statutes § 55).Nevertheless, as noted in the comment to Statutes § 55, "[w]hat is really meantwhen it is said that procedural statutes are generally retroactive is that they apply to pendingproceedings, and even with respect to such proceedings they only affect procedural steps takenafter their enactment. In other words, while procedural changes are generally deemed applicableto subsequent proceedings in pending actions, it takes a clear expression of legislative intent tojustify a retroactive application of a procedural statute so as to affect proceedings previouslytaken in such actions; and in the latter case, a change in procedure is inapplicable, unless inexceptional conditions, where the effect is to nullify by relation things already done in a pendingproceeding" (McKinney's Cons Laws of NY, Book 1, Statutes § 55, Comment at117-118 [1971 ed]). Applying the newly enacted CPL 245.10 (1) (a) retroactively would nullifythe procedures used in all cases prior to the enactment of the new discovery rules and in pendingcases for a period of 8
Furthermore, the CPL states that "[t]he provisions of this chapter do not impair or renderineffectual any proceedings or procedural matters which occurred prior to the effective datethereof" (CPL 1.10 [3]). Although that statute was part of the original enactment of the CriminalProcedure Law, it applies to amendments to the CPL (see People v Bell, 161 AD2d 1137,1138 [4th Dept 1990], lv denied 76 NY2d 784 [1990]; see also People vBattaglia, 159 AD2d 993, 993 [4th Dept 1990], lv denied 76 NY2d 852 [1990]).
In addition, in determining whether to apply an amendment retroactively, " '[t]hecriteria guiding resolution of the question implicate (a) the purpose to be served by the newstandards, (b) the extent of the reliance by law enforcement authorities on the old standards, and(c) the effect on the administration of justice of a retroactive application of the newstandards' " (People v Morales, 37 NY2d 262, 269 [1975], quoting Desist vUnited States, 394 US 244, 249 [1969]). Applying that test, I note that the People relied ininnumerable cases on the old discovery rule in determining when to turn over Rosariomaterial. Thus, it will severely impact the criminal justice system if we apply the statuteretroactively because, in every case in which Rosario materials were requested, thePeople, relying on the existing law, did not turn over the materials until the start of trial. There isno indication that the legislature intended that result, and every indication that it intended that thenew rule apply only prospectively. Thus, I join the majority in applying the former discovery ruleand in voting to affirm. Present—Smith, J.P., NeMoyer, Curran, Bannister and DeJoseph,JJ.