Appeals (1) from a judgment of the Supreme Court (Lawliss, J.), rendered September 8, 2008 in Clinton County, upon a verdict convicting defendant of the crimes of course of sexual conduct against a child in the second degree, criminal sexual act in the first degree, predatory sexual assault against a child (three counts), rape in the first degree (two counts) and rape in the third degree, and (2) by permission, from an order of said court, entered January 30, 2012 in Clinton County, which denied defendant’s motion pursuant to CPL article 440.10 to vacate the judgment, without a hearing.
Defendant was charged in a 14-count indictment with various sex crimes related to his sexual abuse of two girls: victim A, a female relative born in August 1994, for crimes occurring when she was under the age of 13; and victim B, a neighbor born in August 1990, for crimes occurring when she was between the ages of 9 and 16. After a Huntley hearing, Supreme Court denied defendant’s motion to suppress his statements to police, admitting certain sex acts against victim A, but denying all allegations related to victim B. After a jury trial at which both victims testified, one count was dismissed and two counts were reduced, and defendant was convicted as to seven counts pertaining to victim A: course of sexual conduct against a child in the second degree, criminal sexual act in the first degree, three counts of predatory sexual assault against a child and two counts of rape in the first degree. Defendant was also convicted of rape in the third degree as to victim B.1 Upon his convictions, defendant was sentenced to an aggregate prison term of SSVs years to life. Defendant’s subsequent motion to vacate the judgment of conviction was denied, and he now appeals from both the judgment and, with permission, the order denying his motion.
Initially, we disagree with defendant’s claim that Supreme Court erred in denying his motion to suppress the oral and written statements he made to police on October 16, 2007, as his right to counsel was not violated when police declined his requests to call his wife during questioning. The uncontroverted Huntley testimony supports the court’s conclusion that, after victim A’s disclosure, defendant voluntarily went to the State Police barracks with a state trooper, where he was advised of and validly waived his Miranda rights and agreed to speak with police investigators (see People v Cole, 24 AD3d 1021, 1022-1023 [2005], lv denied 6 NY3d 832 [2006]). At no point during the
The police accordingly did not foreclose defendant’s opportunity to invoke his right to counsel and defendant, despite being a competent adult who was capable of invoking that right at any time, failed to do so. Additionally, there was no evidence that his wife had retained counsel for him, or that he sought to contact her for that purpose, and his whereabouts were not concealed from her or from a potential attorney (see People v Salaam, 83 NY2d at 55-56; People v Crimmins, 64 NY2d 1072, 1073 [1985]; People v Wells, 18 AD3d 1022, 1023-1024 [2005], lv denied 5 NY3d 796 [2005]; cf. People v Bevilacqua, 45 NY2d 508, 513 [1978]; People v Townsend, 33 NY2d at 41). In the absence of any threats, deception or trickery or any direct or indirect request for counsel, the People satisfied their burden of demonstrating that defendant’s statements were voluntary and obtained in compliance with his constitutional rights. Defendant’s suppression motion was properly denied.
Next, we reject defendant’s contention that the convictions were against the weight of the evidence. Inasmuch as a different verdict would not have been unreasonable, we weigh the relative probative force of the conflicting testimony and the relative strength of the competing inferences that can be drawn from the testimony (see People v Danielson, 9 NY3d 342, 348 [2007]; People v Bleakley, 69 NY2d 490, 495 [1987]). Victim A, age 13 at trial, testified that defendant began touching her in March 2006, prior to a specific occasion when she was 11 years old and sleeping at defendant’s house; she recounted how he touched her vagina that night and, one week later, he did so again under similar circumstances; defendant continued to do so approximately once a week at various locations, and often
Victim A further described, in detail, incidents when she was 12 years old in November 2006, around Thanksgiving, when defendant forced his mouth on her vagina while she was in bed at night and, after Thanksgiving but before Christmas, when defendant subjected her to sexual intercourse in his bedroom and ejaculated into his underwear. This testimony established, convincingly in our view, defendant’s guilt of rape in the first degree (count 4), predatory sexual assault against a child (counts 3 and 5) and criminal sexual act in the first degree (count 2). With regard to the remaining counts pertaining to victim A, she testified to a particularly degrading incident in early 2007, when she was still 12 years old, in which defendant pushed her into the bathroom, held her face down on a dog cage and engaged in forcible sexual intercourse with her. This amply demonstrated defendant’s guilt of rape in the first degree (count 8) and predatory sexual assault against a child (count 9).
In attacking the weight of the evidence, defendant downplays the significance of his oral and written statements to police in October 2007. However, while attempting to shift some of the blame to victim A, defendant admitted to touching and penetrating her vagina with his fingers, and touching her breasts and “butt” once or twice a week beginning a year earlier; he also admitted that he put his mouth on her vagina about once a month and that, at times, her hand touched his penis. He also claimed that he tried to insert his penis in her vagina but she told him to stop and he did stop. This provided compelling additional proof of defendant’s crimes against victim A.
Victim B, age 17 at trial, testified that defendant began sexually abusing her when she was 10 years old, and that the abuse continued for years. She recounted that defendant treated her well, often bought her things and told her she was pretty and had nice hair. As relevant to defendant’s conviction of rape in the third degree of victim B under count 14, she testified to an incident in the summer of 2006 in which defendant subjected
Defendant’s challenge to the weight of the evidence focuses on the victims’ motives to lie, inconsistencies between the victims’ accounts, their lack of specificity and piecemeal disclosure, the lack of medical evidence, and their credibility, all of which were fully explored at trial for the jury. The internal and comparative inconsistencies in the victims’ testimony did not relate to whether the described sexual conduct was repeatedly committed by defendant against them (see People v Nowinski, 36 AD3d 1082, 1084 [2007], lv denied 8 NY3d 989 [2007]), and the jury rejected defendant’s claim that the allegations had been fabricated by convicting defendant of most charges (see People v Warner, 69 AD3d 1052, 1054 [2010], lv denied 14 NY3d 894 [2010]). We accord great deference to the jury’s opportunity to view the victims’ testimony and assess their credibility, as well as their ability to recall the specific details and time frames of particular sex crimes, and we discern no reason to disturb that assessment (see People v Cecunjanin, 67 AD3d 1072, 1076 [2009], affd 16 NY3d 488 [2011]; People v Weber, 25 AD3d 919, 921 [2006], lv denied 6 NY3d 839 [2006]). Given the jury’s determination to convict defendant of 8 of 132 counts submitted to it, the fact that the jury acquitted defendant of some counts as to each victim (four counts in all) did not necessarily mean that the jury discounted the victims’ credibility as to the remaining counts.
The reasons for the victims’ delayed reporting of the ongoing sexual abuse were probed in depth at trial, and the jury was aided by the expert testimony of Richard Hamill, who explained, in general terms, the many behaviors exhibited by child victims of sexual abuse, including delayed disclosure, known as child sexual abuse accommodation syndrome (hereinafter CSAAS) (see People v Carroll, 95 NY2d 375, 387 [2000]; see also People v Spicola, 16 NY3d 441, 465-466 [2011], cert denied 565 US —, 132 S Ct 400 [2011]). Victim A testified that she finally disclosed
With regard to Hamill’s CSAAS testimony, he was very clear that he had not met or examined the victims or defendant and could not express any opinion as to their credibility or whether the charged crimes occurred; he at all times stayed within the permissible parameters of expert testimony explaining the common behaviors of victims of child sex abuse that the jury may not understand (see People v Spicola, 16 NY3d at 465-466; People v Carroll, 95 NY2d at 387; People v Williams, 50 NY2d 996, 998 [1980]; People v Greene, 306 AD2d 639, 642-643 [2003], lv denied 100 NY2d 594 [2003]; cf. People v Williams, 20 NY3d 579, 583-584 [2013]). To be sure, the better practice is for the trial court to provide a contemporaneous limiting instruction, repeated during the final charge, clarifying that CSAAS testimony is not offered as proof of the crime charged (see CJI2d[NY] Expert on a Crime Victim Syndrome; see e.g. People v Kukon, 275 AD2d 478, 479 [2000], lv denied 95 NY2d 936 [2000]; People v Archer, 232 AD2d 820, 822 [1996], lv denied 90 NY2d 938 [1997]; cf. People v Justice, 99 AD3d 1213, 1215 [2012], lv denied 20 NY3d 1012 [2013]; People v Gregory, 78 AD3d 1246, 1247-1248 [2010], lv denied 16 NY3d 831 [2011]). However, defense counsel did not request such an instruction or object to the final charge as given; thus, this issue is not preserved (see People v Adoms, 92 AD3d 450, 451 [2012], lv denied 19 NY3d 970 [2012]; People v Wright, 5 AD3d 873, 876-877 [2004], lv denied 3 NY3d 651 [2004]). Similarly, defendant raised no objections to the prosecutor’s summation remarks related to Hamill’s testimony and, as such, any issues related thereto are not preserved for our review.
Defendant was otherwise provided meaningful representation by counsel, who made appropriate pretrial motions, effectively cross-examined witnesses, and delivered cogent opening and closing remarks in support of the defense theory — albeit unsuccessful — that the victims had fabricated the allegations and that defendant had not made admissions to police (see People v Henry, 95 NY2d 563, 566 [2000]; People v Benevento, 91 NY2d 708, 714 [1998]). Counsel also obtained a reduction of some counts, dismissal of another count, and acquittal on five counts. With regard to defendant’s claim that he was prejudiced by counsel’s decision to admit a photograph of his erect penis, he has not demonstrated the absence of strategic or other legitimate explanations for counsel’s decision (see People v Benevento, 91
Supreme Court did not abuse its discretion by denying defendant’s motion to vacate the judgment without a hearing (see CPL 440.30 [4]). To the extent that defendant claims that the People withheld exculpatory evidence, his witness on that point effectively recanted her earlier affidavit and, in view of the People’s affidavits undermining this claim, no issue of fact was presented (see CPL 440.10 [1] [b], [h]; People v Samandarov, 13 NY3d 433, 436, 439-440 [2009]). With regard to defendant’s claim that newly discovered evidence required that his conviction be vacated (see CPL 440.10 [1] [g]), defense counsel’s ultimate concession that the police interview notes at issue were in his file belied any claim that the evidence “could have not been discovered before the trial [and produced at trial] by the exercise of due diligence” (People v Lackey, 48 AD3d 982, 983 [2008], lv denied 10 NY3d 936 [2008]). As there was no factual dispute, the court providently decided the motion without a hearing (CPL 440.30 [4]).
Finally, we discern no basis for reducing defendant’s sentence. As the aggregate maximum term of defendant’s consecutive sentences included determinate and indeterminate sentences and included three or more violent felony offenses, one of which is a class B violent felony offense (i.e., counts 2 [criminal sexual act in the first degree], 4 and 8 [rape in the first degree]; see Penal Law § 70.02 [1] [a]), by operation of law, the Department of Corrections and Community Supervision will cap defendant’s sentence to a 50-year determinate term (see Penal Law § 70.30 [1] [e] [vii]; People v Moore, 61 NY2d 575, 578 [1984]; People v Swinton, 87 AD3d 491, 494 [2011], lv denied 18 NY3d 862
Lahtinen, J.E, McCarthy and Egan Jr., JJ., concur. Ordered that the judgment and order are affirmed.
1.
Defendant was found not guilty of two counts as to victim A and three counts as to victim B.
2.
Count 11 was dismissed at trial based upon insufficient evidence.
3.
Victim A testified that she saw defendant’s penis on multiple occasions and up close but did not “examine” it and had not previously seen one. Victim B testified that she closed her eyes during the sexual abuse and never saw defendant’s penis, and was not sure if she had seen his legs but did not recall any marks or scars on them.