SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
688
KA 13-00748
PRESENT: SCUDDER, P.J., CARNI, SCONIERS, VALENTINO, AND WHALEN, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
DONALD J. ENGLERT, II, DEFENDANT-APPELLANT.
EASTON THOMPSON KASPEREK SHIFFRIN LLP, ROCHESTER (BRIAN SHIFFRIN OF
COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (ROBERT J. SHOEMAKER OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Monroe County Court (Dennis M.
Kehoe, A.J.), rendered April 9, 2013. The judgment convicted
defendant, upon a jury verdict, of course of sexual conduct against a
child in the first degree.
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of course of sexual conduct against a child in the
first degree (Penal Law § 130.75 [1] [a]). We reject defendant’s
contention that County Court erred in permitting the People to
introduce evidence of his sexual practices and/or proclivities with
his former girlfriend. Inasmuch as such evidence was not related to
any prior crime or misconduct, we conclude that it did not constitute
Molineux evidence (see People v Cortez, 22 NY3d 1061, 1076-1080
[Abdus-Salaam, J., concurring], cert denied ___ US ___, 135 S Ct 146).
Contrary to defendant’s contention, the court did not abuse its
discretion in permitting the People to elicit testimony from the
investigating police officer concerning his training and background in
child sexual abuse investigations as well as testimony that provided a
general overview of such investigations (see People v Kozlowski, 11
NY3d 223, 238, rearg denied 11 NY3d 904, cert denied 556 US 1282).
Moreover, inasmuch as the officer’s testimony did not contain any
statement of the victim, it could not be considered bolstering (see
People v Ludwig, 24 NY3d 221, 230-232). Defendant failed to preserve
for our review his contention that the court erred in permitting the
testimony of an expert with respect to child sexual abuse
accommodation syndrome (CSAAS) (see generally People v Goupil, 104
AD3d 1215, 1216, lv denied 21 NY3d 943), and, in any event, that
contention is without merit (see People v Williams, 20 NY3d 579, 583-
-2- 688
KA 13-00748
584; People v Spicola, 16 NY3d 441, 465, cert denied ___ US ___, 132 S
Ct 400; People v Black, 124 AD3d 1365, 1366-1367). We likewise reject
defendant’s contention that the testimony of the nurse-practitioner
“improperly bolstered the perceived credibility” of the victim. The
testimony was well within the type of expert testimony that is
accepted by the courts in New York (see Spicola, 16 NY3d at 465), and
did not constitute bolstering (see Ludwig, 24 NY3d at 230-232).
Contrary to the further contention of defendant, “[t]he failure
of defense counsel to obtain the testimony of an expert does not
constitute ineffective assistance of counsel because defendant has not
shown that ‘such testimony was available, that it would have assisted
the jury in its determination or that [defendant] was prejudiced by
its absence’ ” (People v Brandi E., 38 AD3d 1218, 1219, lv denied 9
NY3d 863; see People v Aikey, 94 AD3d 1485, 1487, lv denied 19 NY3d
956). Insofar as defendant contends that defense counsel was
ineffective in failing to object to the testimony of the People’s
CSAAS expert, we note that the law is well settled that such testimony
is permitted (see Spicola, 16 NY3d at 465; see also People v Karst,
166 AD2d 920, 921, lv denied 76 NY2d 987), and defense counsel thus
had no legitimate basis to object (see People v Wallace, 60 AD3d 1268,
1270-1271, lv denied 12 NY3d 922).
Viewing the evidence in light of the elements of the crime as
charged to the jury (see People v Danielson, 9 NY3d 342, 349), we
reject defendant’s contention that the verdict is against the weight
of the evidence (see generally People v Bleakley, 69 NY2d 490, 495).
Entered: July 10, 2015 Frances E. Cafarell
Clerk of the Court