Opinion
No. 370 KA 20-00325
06-03-2022
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. DALE T. YOUNG, JR., ALSO KNOWN AS DALE T. YOUNG, ALSO KNOWN AS DALE YOUNG, JR., ALSO KNOWN AS DALE THOMAS YOUNG, JR., DEFENDANT-APPELLANT.
HOUSH LAW OFFICES, PLLC, BUFFALO (FRANK T. HOUSH OF COUNSEL), FOR DEFENDANT-APPELLANT. LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (ROBERT J. SHOEMAKER OF COUNSEL), FOR RESPONDENT.
HOUSH LAW OFFICES, PLLC, BUFFALO (FRANK T. HOUSH OF COUNSEL), FOR DEFENDANT-APPELLANT.
LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (ROBERT J. SHOEMAKER OF COUNSEL), FOR RESPONDENT.
PRESENT: PERADOTTO, J.P., LINDLEY, CURRAN, WINSLOW, AND BANNISTER, JJ.
Appeal from a judgment of the Genesee County Court (Charles N. Zambito, J.), rendered January 27, 2020. The judgment convicted defendant, upon a nonjury verdict, of criminal sexual act in the third degree (three counts) and endangering the welfare of a child.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a nonjury verdict, of three counts of criminal sexual act in the third degree (Penal Law § 130.40 [2]) and one count of endangering the welfare of a child (§ 260.10 [1]). We affirm.
Defendant contends that County Court should have precluded the testimony of the People's expert on child sexual abuse accommodation syndrome (CSAAS) based on the lack of timely notice concerning the expert's testimony. We reject that contention." 'Pretrial discovery in criminal proceedings is governed by statute, '" and defendant has "identifie[d] no statute [in effect at the time of his trial] requiring the People to provide discovery concerning the identity of the expert or the content of her testimony" (People v Ruiz, 159 A.D.3d 1375, 1376 [4th Dept 2018]; see People v Austen, 197 A.D.3d 861, 861 [4th Dept 2021], lv denied 37 N.Y.3d 1095 [2021]).
We also reject defendant's related contention that the court abused its discretion in admitting in evidence the testimony of the expert regarding CSAAS. Such testimony is admissible "for the purpose of explaining behavior that might be puzzling" to a trier of fact (People v Spicola, 16 N.Y.3d 441, 465 [2011], cert denied 565 U.S. 942 [2011]; see People v Nicholson, 26 N.Y.3d 813, 828 [2016]), including the court in a nonjury trial (see People v Williams, 20 N.Y.3d 579, 583-584 [2013]). Expert testimony concerning CSAAS "is admissible to explain the behavior of child sex abuse victims as long as it is general in nature and does not constitute an opinion that a particular alleged victim is credible or that the charged crimes in fact occurred" (People v Drake, 138 A.D.3d 1396, 1398 [4th Dept 2016], lv denied 28 N.Y.3d 929 [2016]; see People v Diaz, 20 N.Y.3d 569, 575-576 [2013]; Williams, 20 N.Y.3d at 583-584). Here, "[a]lthough some of the testimony discussed behavior similar to that alleged by the [victim] in this case, the expert spoke of such behavior in general terms" and, "[i]n addition, the [court] heard the expert testify that she was not aware of the facts of the particular case, did not speak with the [victim] and was not rendering an opinion as to whether sexual abuse took place" (Diaz, 20 N.Y.3d at 575-576; see Austen, 197 A.D.3d at 862; cf. Ruiz, 159 A.D.3d at 1376-1377). Contrary to defendant's contention, we conclude that "the expert's testimony, grounded in [her] professional knowledge and training, provided relevant information outside the ken of the [trier of fact] and was properly admitted" (Nicholson, 26 N.Y.3d at 829; see Williams, 20 N.Y.3d at 584).
Defendant further contends that he was denied effective assistance of counsel based on defense counsel's purported failures to adequately challenge and respond to the testimony of the People's expert regarding CSAAS. We reject that contention. "There can be no denial of effective assistance of trial counsel arising from counsel's failure to 'make a motion or argument that has little or no chance of success'" (People v Caban, 5 N.Y.3d 143, 152 [2005]) and, here, defense counsel had no legitimate basis to further object to the expert's testimony as constituting improper bolstering (see People v Meyers, 188 A.D.3d 1732, 1734 [4th Dept 2020]; People v Englert, 130 A.D.3d 1532, 1533-1534 [4th Dept 2015], lv denied 26 N.Y.3d 967 [2015], lv denied 26 N.Y.3d 1144 [2016]). To the extent that defendant asserts that defense counsel was ineffective in failing to conduct an adequate cross-examination of the expert, we conclude that defendant's assertion lacks merit. Defense counsel "carefully highlighted on cross-examination that CSAAS was not a diagnostic tool for proving whether sexual abuse had occurred or whether the victims' accounts were truthful... and [elicited acknowledgments] that the... expert could give no evidence with respect to the ultimate issue of the case, i.e., defendant's guilt," and that children are capable of making false accusations (People v Mirabella, 187 A.D.3d 1589, 1590 [4th Dept 2020], lv dismissed 36 N.Y.3d 930 [2020] [internal quotation marks omitted]; see People v Maxey, 129 A.D.3d 1664, 1665 [4th Dept 2015], lv denied 27 N.Y.3d 1002 [2016], reconsideration denied 28 N.Y.3d 933 [2016]). Defendant's "simple disagreement with strategies, tactics or the scope of possible cross-examination, weighed long after the trial, does not suffice" to demonstrate that he was denied effective assistance of counsel (People v Flores, 84 N.Y.2d 184, 187 [1994]). Defendant's assertion that defense counsel was ineffective in failing to secure opposing CSAAS testimony lacks merit inasmuch as defendant "has not demonstrated that such testimony was available, that it would have assisted the [court] in its determination or that he was prejudiced by its absence" (Meyers, 188 A.D.3d at 1734 [internal quotation marks omitted]; see Englert, 130 A.D.3d at 1533).
Defendant failed to preserve for our review his contention that the People did not establish an adequate chain of custody with respect to the clothes obtained during the investigation and the DNA results derived therefrom inasmuch as he did not object to the admission of that evidence (see People v Irizarry, 160 A.D.3d 1384, 1386 [4th Dept 2018], lv denied 31 N.Y.3d 1149 [2018]). In any event, "[t]he testimony presented at the trial sufficiently established the authenticity of that evidence through reasonable assurances of identity and unchanged condition" (People v Washington, 39 A.D.3d 1228, 1230 [4th Dept 2007], lv denied 9 N.Y.3d 870 [2007] [internal quotation marks omitted]; see People v Julian, 41 N.Y.2d 340, 342-343 [1977]), and thus "any alleged gaps in the chain of custody went to the weight of the evidence, not its admissibility" (People v Kennedy, 78 A.D.3d 1477, 1478 [4th Dept 2010], lv denied 16 N.Y.3d 798 [2011]; see People v Hawkins, 11 N.Y.3d 484, 494 [2008]).
To the extent that defendant contends that the evidence is legally insufficient to support the conviction, that contention is not preserved for our review (see People v Gray, 86 N.Y.2d 10, 19 [1995]). Finally, to the extent that defendant contends that the verdict is against the weight of the evidence, we reject that contention. Viewing the evidence in light of the elements of the crimes in this nonjury trial (see People v Danielson, 9 N.Y.3d 342, 349 [2007]), we conclude that, even assuming, arguendo, that an acquittal would not have been unreasonable, it cannot be said that the court failed to give the evidence the weight it should be accorded (see generally People v Bleakley, 69 N.Y.2d 490, 495 [1987]).