Opinion
2019–06961 Ind. No. 1614/17
11-25-2020
The PEOPLE, etc., respondent, v. Gonzalo GALVEZ, appellant.
Marianne Karas, Thornwood, NY, for appellant. Madeline Singas, District Attorney, Mineola, N.Y. (Jason R. Richards and Amanda Manning of counsel), for respondent.
Marianne Karas, Thornwood, NY, for appellant.
Madeline Singas, District Attorney, Mineola, N.Y. (Jason R. Richards and Amanda Manning of counsel), for respondent.
REINALDO E. RIVERA, J.P., LEONARD B. AUSTIN, JEFFREY A. COHEN, COLLEEN D. DUFFY, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Helene F. Gugerty, J.), rendered May 31, 2019, convicting him of predatory sexual assault against a child (two counts) and course of sexual conduct against a child in the first degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, the record fails to establish that he was deprived of the effective assistance of counsel during plea negotiations (see People v. Justiniano , 186 A.D.3d 1257, 127 N.Y.S.3d 886 ; People v. Heyliger , 138 A.D.2d 519, 526 N.Y.S.2d 398 ). The defendant otherwise failed to demonstrate that his attorney's representation during trial "fell below an objective standard of reasonableness" ( Strickland v. Washington , 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 ), or that his attorney failed to provide him with "meaningful representation" ( People v. Baldi , 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 ).
The defendant's specific contention that the testimony of the People's expert impermissibly bolstered the testimony of the complaining witnesses is unpreserved for appellate review (see CPL 470.05[2] ). In any event, the contention is without merit. The expert's testimony was properly admitted as it helped explain the complaining witness's behavior after the abuse, which was not within the purview of the average juror (see People v. Carroll , 95 N.Y.2d 375, 387, 718 N.Y.S.2d 10, 740 N.E.2d 1084 ; People v. Taylor , 75 N.Y.2d 277, 288, 552 N.Y.S.2d 883, 552 N.E.2d 131 ; People v. Keindl , 68 N.Y.2d 410, 422, 509 N.Y.S.2d 790, 502 N.E.2d 577 ; People v. Goodman , 21 A.D.3d 906, 906–907, 800 N.Y.S.2d 631 ; People v. Hinspeter , 12 A.D.3d 617, 618, 785 N.Y.S.2d 105 ), and the expert's testimony neither bolstered nor vouched for the complaining witness's credibility, as the expert spoke in general terms and did not suggest that the charged crimes occurred (see People v. Tebout , 179 A.D.3d 1099, 1101, 114 N.Y.S.3d 679 ; People v. Taylor , 165 A.D.3d 707, 708–709, 84 N.Y.S.3d 262 ).
The defendant failed to preserve for appellate review his contention that the sentence imposed improperly penalized him for exercising his right to trial (see People v. Hurley , 75 N.Y.2d 887, 888, 554 N.Y.S.2d 469, 553 N.E.2d 1017 ; People v. Soto , 155 A.D.3d 1066, 1068, 64 N.Y.S.3d 33 ), "since he did not set forth the issue on the record at the time of sentencing" ( People v. Williams , 127 A.D.3d 1114, 1118, 7 N.Y.S.3d 434 ). In any event, the record does not indicate any retaliation or vindictiveness against the defendant on the part of the Supreme Court in arriving at the sentence (see People v. Fernandez , 115 A.D.3d 977, 979, 982 N.Y.S.2d 174 ), and the fact that the sentence imposed after trial was greater than the sentence offered during plea negotiations is not, standing alone, an indication that the defendant was punished for exercising his right to trial (see People v. Pena , 50 N.Y.2d 400, 411–412, 429 N.Y.S.2d 410, 406 N.E.2d 1347 ; People v. Roland , 167 A.D.3d 942, 944, 90 N.Y.S.3d 115 ). Moreover, the sentence imposed was not excessive (see People v. Suitte , 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
RIVERA, J.P., AUSTIN, COHEN and DUFFY, JJ., concur.