Opinion
2014-03-25
The PEOPLE of the State of New York, Respondent, v. Nilton RODRIGUEZ, Defendant–Appellant.
Brafman & Associates P.C., New York (Mark M. Baker of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Christopher P. Marinelli of counsel), for respondent.
Brafman & Associates P.C., New York (Mark M. Baker of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Christopher P. Marinelli of counsel), for respondent.
GONZALEZ, P.J., MAZZARELLI, RENWICK, FEINMAN, GISCHE, JJ.
Judgment, Supreme Court, New York County (Gregory Carro, J.), rendered October 17, 2011, as amended October 20, 2011, convicting defendant, after a nonjury trial, of course of sexual conduct against a child in the first degree, and sentencing him to a term of 20 years, unanimously affirmed.
The verdict was not against the weight of the evidence ( People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). There is no basis for disturbing the court's credibility determinations, including its resolution of inconsistencies in testimony. The victim's mother, who caught defendant in his final act of sexual conduct toward the victim, provided significant corroborating testimony.
The submissions on defendant's CPL 440.10 motion to vacate the judgment are not properly before this Court because defendant did not obtain leave to appeal from the denial of the motion ( seeCPL 450.15[1]; 460.15; People v. Dukes, 284 A.D.2d 236, 726 N.Y.S.2d 554 [2001],lv. denied97 N.Y.2d 681, 738 N.Y.S.2d 296, 764 N.E.2d 400 [2001] ). “Defendant's request that the bench for this appeal entertain a leave application is procedurally improper because CPL 460.15 specifically provides that such an application can only be made to an individual justice, and can only be made once” ( People v. Wilkov, 77 A.D.3d 512, 513, 911 N.Y.S.2d 1 [1st Dept. 2010], lv. denied16 N.Y.3d 746, 917 N.Y.S.2d 628, 942 N.E.2d 1053 [2011] ).
Since defendant's objection to expert testimony was made on completely different grounds from those raised on his appeal, he did not preserve his appellate claim that the expert's testimony was improper because it was tailored to the facts of the case ( see e.g. People v. Garcia, 83 N.Y.2d 817, 819, 611 N.Y.S.2d 490, 633 N.E.2d 1094 [1994] ). Defendant's constitutional claim is likewise unpreserved ( see People v. Lane, 7 N.Y.3d 888, 889, 826 N.Y.S.2d 599, 860 N.E.2d 61 [2006] ). We decline to review these claims in the interest of justice, and as alternative holding, we reject them on the merits. The court properly exercised its discretion in admitting expert testimony on child sexual abuse as an aid in reaching a verdict ( see People v. Taylor, 75 N.Y.2d 277, 288, 552 N.Y.S.2d 883, 552 N.E.2d 131 [1990] ). The expert, Dr. Eileen Treacy, discussed in general terms how a child might react to sexual abuse, and when and to whom a child might reveal the abuse. Significantly, the expert's testimony did not include responses to any hypotheticals tailored to the facts of the case or otherwise imply that the expert found the testimony of the particular complainant to be credible ( compare People v. Williams, 20 N.Y.3d 579, 584, 964 N.Y.S.2d 483, 987 N.E.2d 260 [2013];see also People v. Spicola, 16 N.Y.3d 441, 462–467, 922 N.Y.S.2d 846, 947 N.E.2d 620 [2011],cert. denied––– U.S. ––––, 132 S.Ct. 400, 181 L.Ed.2d 257 [2011] ).
We perceive no basis for reducing the sentence.