Opinion
2013-06-14
The PEOPLE of the State of New York, Respondent, v. David LEMERY, Defendant–Appellant.
Bruce R. Bryan, Syracuse, for Defendant–Appellant. Scott D. McNamara, District Attorney, Utica (Steven G. Cox of Counsel), for Respondent.
Bruce R. Bryan, Syracuse, for Defendant–Appellant. Scott D. McNamara, District Attorney, Utica (Steven G. Cox of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, CARNI, AND LINDLEY, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon a jury verdict of course of sexual conduct against a child in the second degree (Penal Law § 130.80[1][a] ). Contrary to defendant's contention, County Court properly exercised its discretion in precluding defendant from introducing expert testimony with respect to whether defendant, as the result of chemotherapy treatments, had a diminished mental capacity that prevented him from understanding what he was saying in taped conversations he had with the victim that were inculpatory in nature ( see People v. Covington, 298 A.D.2d 930, 930, 748 N.Y.S.2d 94,lv. denied99 N.Y.2d 557, 754 N.Y.S.2d 209, 784 N.E.2d 82). “As a general rule, the admissibility and limits of expert testimony lie primarily in the sound discretion of the trial court” ( People v. Lee, 96 N.Y.2d 157, 162, 726 N.Y.S.2d 361, 750 N.E.2d 63;see People v. Williams, 97 N.Y.2d 735, 736, 742 N.Y.S.2d 597, 769 N.E.2d 343;People v. Cronin, 60 N.Y.2d 430, 433, 470 N.Y.S.2d 110, 458 N.E.2d 351). Under the circumstances of this case, we conclude that evaluating defendant's recorded conversations with the victim was “within the ken of the typical juror” ( Cronin, 60 N.Y.2d at 433, 470 N.Y.S.2d 110, 458 N.E.2d 351;see Covington, 298 A.D.2d at 930, 748 N.Y.S.2d 94). Additionally, the proposed expert was unableto testify to a reasonable degree of medical certainty that chemotherapy treatments caused defendant's purported deficits ( see generally People v. Allweiss, 48 N.Y.2d 40, 50, 421 N.Y.S.2d 341, 396 N.E.2d 735).
Contrary to defendant's further contention, we conclude that the court properly prohibited defendant from cross-examining the victim with respect to her prior juvenile adjudication. It is “impermissible to use a youthful offender or juvenile delinquency adjudication as an impeachment weapon, because these adjudications are not convictions of a crime” ( People v. Gray, 84 N.Y.2d 709, 712, 622 N.Y.S.2d 223, 646 N.E.2d 444 [internal quotation marks omitted] ). The extent to which a party may use the “ ‘illegal or immoral acts underlying such adjudications' ” to impeach the credibility of a witness is a matter that is generally left to the discretion of the court ( id.; see generally People v. Sandoval, 34 N.Y.2d 371, 375, 357 N.Y.S.2d 849, 314 N.E.2d 413). Here, the court properly exercised its discretion in precluding cross-examination with respect to the prior bad acts underlying the victim's juvenile adjudication inasmuch as they did not reflect on her credibility ( cf. People v. Bell, 265 A.D.2d 813, 814, 696 N.Y.S.2d 610,lv. denied94 N.Y.2d 916, 708 N.Y.S.2d 355, 729 N.E.2d 1154;see generally Sandoval, 34 N.Y.2d at 376, 357 N.Y.S.2d 849, 314 N.E.2d 413).
Additionally, viewing the evidence in light of the elements of the crime as charged to the jury ( see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we conclude that the verdict is not against the weight of the evidence ( see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Contrary to defendant's contention, the victim's testimony was not incredible as a matter of law, and we afford “ ‘deference to the jury's superior ability to evaluate the credibility of the People's witnesses' ” ( People v. Baker, 30 A.D.3d 1102, 1103, 817 N.Y.S.2d 793,lv. denied7 N.Y.3d 846, 823 N.Y.S.2d 775, 857 N.E.2d 70). Finally, the sentence is not unduly harsh or severe; the three-year determinate sentence of incarceration is at the lower end of the legal sentencing range and thus indicates that the sentencing court considered defendant's mitigating circumstances (Penal Law §§ 70.80[4][a] [iii]; 130.80).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.