The opinion
State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: May 14, 2015 106037
________________________________
THE PEOPLE OF THE STATE OF
NEW YORK,
Respondent,
v MEMORANDUM AND ORDER
FREDERICK BROWN,
Appellant.
________________________________
Calendar Date: March 27, 2015
Before: Garry, J.P., Egan Jr., Lynch and Clark, JJ.
__________
Easton Thompson Kasperek Shiffrin, LLP, Rochester (William
T. Easton of counsel), for appellant.
Mark D. Suben, District Attorney, Cortland (Elizabeth
McGrath of counsel), for respondent.
__________
Egan Jr., J.
Appeal from a judgment of the County Court of Cortland
County (Campbell, J.), rendered March 21, 2013, upon a verdict
convicting defendant of the crimes of rape in the first degree
(six counts), rape in the second degree (three counts), rape in
the third degree, criminal sexual act in the first degree,
criminal sexual act in the second degree, attempted criminal
sexual act in the first degree and sexual abuse in the first
degree.
In 2011, defendant, the live-in boyfriend of the victim's
mother, was charged in a superseding indictment with various
crimes based upon his sexual contact with the victim (born in
1989) between 2001 and 2005. The victim disclosed the abuse to
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law enforcement in July 2010. Following a jury trial, defendant
was convicted as charged and thereafter was sentenced to an
aggregate prison term of 120 years – reduced by operation of law
to 50 years (see Penal Law § 70.30 [1] [e] [vi]) – and five years
of postrelease supervision. This appeal by defendant ensued.
Defendant does not challenge either the legal sufficiency
or the weight of the evidence adduced at trial, contending
instead that County Court committed various evidentiary rulings.
In defendant's view, these errors individually and collectively
impaired his ability to mount a defense, thereby depriving him of
a fair trial and warranting reversal of his convictions. For the
reasons that follow, we find defendant's arguments to be
unpersuasive and, accordingly, affirm the judgment of conviction.
Defendant initially takes issue with County Court's
Molineux ruling – specifically, the court's decision to allow the
victim to testify as to multiple uncharged acts of rape. Prior
to trial, the People sought permission to introduce testimony
from the victim to the effect that defendant raped her
approximately twice a week over the course of five years, arguing
that such proof provided necessary background information,
established the victim's state of mind (as well as defendant's
motive and intent), eliminated the possibility of a mistake or
accident and was relevant to the element of forcible compulsion.
County Court thereafter issued a written decision, wherein it
expressly acknowledged the two-part Molineux test (see People v
Rivera, 124 AD3d 1070, 1073 [2015]), and granted the People's
application.
At trial, the People asked the victim what transpired after
defendant first had intercourse with her, in response to which
the victim testified that "[t]hings kept going the way they did
that first time" and, on average, defendant would come into her
room "at least twice a week" to have sex with her. Defendant's
objection to such testimony was duly noted and overruled.1
1
At the conclusion of the victim's direct examination,
County Court gave a limiting instruction to the jury, advising it
that such testimony could only be considered "on the questions of
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Cross-examination of the victim ensued, during the course of
which defense counsel twice characterized the victim's testimony
in this regard as an assertion that she had been raped by
defendant "upwards of 500 times" over the course of a five-year
period – a number that defense counsel, in an apparent effort to
discredit the victim, continued to emphasize in his summation.2
Defendant now argues that the admission of this testimony –
attributing to him 500 uncharged acts of rape – was highly
prejudicial and operated to deprive him of a fair trial.
To the extent that defendant's argument on this point has
been preserved for our review, we find it to be lacking in merit.
Without belaboring the point, we are satisfied that the victim's
testimony regarding the uncharged acts of rape was probative of,
among other things, the element of forcible compulsion (see
People v Maggio, 70 AD3d 1258, 1260 [2010], lv denied 14 NY3d 889
[2010]; People v Shofkom, 63 AD3d 1286, 1288 [2009], lv denied 13
NY3d 799 [2009], appeal dismissed 13 NY3d 933 [2010]), her delay
in reporting the charged crimes (see People v Justice, 99 AD3d
defendant's intent and motive to commit the crimes charged, the
victim's failure to promptly disclose, the relationship between
. . . defendant and the victim, and to explain the presence of
forcible compulsion." In so doing, County Court twice informed
the jury that such testimony could not be considered "for the
purpose of proving that . . . defendant had a propensity or
predisposition to commit the crimes charged." A similar limiting
instruction was included in County Court's final charge to the
jury. Defense counsel did not object to the instructions as
given, nor did he request any further instructions on this point.
2
The crux of trial counsel's argument was that, given the
physical layout and composition of the victim's household during
the relevant time period, it was implausible that defendant could
have raped the victim 500 times without any other member of the
household seeing or hearing one of these encounters or otherwise
suspecting that something was amiss. At oral argument, appellate
counsel acknowledged that trial counsel's decision in this regard
was a tactical one aimed at minimizing the impact of County
Court's Molineux ruling and undermining the victim's credibility.
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1213, 1215 [2012], lv denied 20 NY3d 1012 [2013]; People v
Maggio, 70 AD3d at 1260), the relationship between defendant and
the victim (cf. People v Cullen, 110 AD3d 1474, 1475 [2013], affd
24 NY3d 1014 [2014]; People v Carey, 92 AD3d 1224, 1225 [2012],
lv denied 18 NY3d 992 [2012]) and defendant's motive and intent
(cf. People v Thomas, 85 AD3d 1572, 1572 [2011], affd 21 NY3d 226
[2013]; see generally People v Lutchmansigh, 306 AD2d 540, 541
[2003], lv denied 100 NY2d 596 [2003]). Additionally, while
County Court's written decision could have been more explicit
(see People v Nash, 87 AD3d 757, 759 [2011], lv denied 17 NY3d
954 [2011]), the record nonetheless reflects that County Court
was aware of its obligation to balance the probative value of
such evidence against its prejudicial effect, and we have no
quarrel with the court's determination on this point –
particularly in view of the accompanying limiting instructions.3
Defendant next contends that County Court erred in
precluding him from eliciting testimony that purportedly would
have established the victim's motive to fabricate her allegations
of rape against defendant. On redirect examination, the victim
was asked if her husband, who was her boyfriend at the time that
she first disclosed defendant's conduct, had "ever ask[ed her] to
lie about what [defendant] had done," and the victim replied,
"No." Thereafter, defense counsel asked the victim's husband,
who was called as a defense witness, on direct examination
whether he previously had attempted to persuade a former
girlfriend (who was not the victim here) to claim that her father
had raped her, and the victim's husband denied doing so. Defense
counsel thereafter sought to question this former girlfriend, who
also was called as a defense witness, regarding whether the
victim's husband had in fact pressured her to make a false
allegation of rape against her own father. The People's
objection to such testimony was sustained. Defendant now
contends that the preclusion of this testimony deprived him of a
fair trial – reasoning that if the victim's husband tried to
3
As for defendant's assertion that he similarly was
prejudiced by County Court's decision to permit certain testimony
regarding the details of a medical procedure that the victim
underwent, we deem any error in this regard to be harmless.
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persuade a former girlfriend to falsely claim that her father had
raped her, it necessarily follows that the victim's husband must
have persuaded the victim to fabricate allegations of rape
against defendant in this matter, thereby calling the victim's
credibility into question. The fallacy in defendant's argument
is readily apparent, as the proffered testimony neither bore upon
the victim's credibility, demonstrated the victim's propensity
for making false accusations nor established a motive for the
victim to lie.
To be sure, a victim's "[p]rior false rape complaints may
be admissible when they suggest a pattern casting substantial
doubt on the validity of the [present] charges . . . or indicate
a significant probative relation to such charges" (People v
Blackman, 90 AD3d 1304, 1310 [2011], lv denied 19 NY3d 971 [2012]
[internal quotation marks and citation omitted]). Here, however,
the sought-after testimony was not offered to show that the
victim had made prior false allegations of rape but, rather, to
establish that her husband previously had attempted to persuade
another woman to make such allegations with respect to her
father. Similarly, while it is true that "[p]roof aimed at
establishing a motive to fabricate is never collateral and may
not be excluded on that ground" (People v Grant, 60 AD3d 865, 865
[2009] [internal quotation marks and citations omitted]),
defendant's attempt to indirectly attack the victim's credibility
by attacking the credibility of her husband – through an
unrelated third party and regarding an allegation of rape that
implicated neither the victim nor defendant – is simply too
attenuated to withstand scrutiny. Notably, defense counsel
thoroughly cross-examined the victim regarding her accusations
against defendant, the circumstances surrounding her disclosure,
the reasons underlying her delay in reporting the abuse and her
husband's purported role in coming forward. For all of these
reasons, we do not find that County Court abused its discretion
in precluding the ex-girlfriend's testimony on this point.
Nor do we find merit to defendant's claim that County Court
abused its discretion in permitting Megan Dietz, a licensed
clinical social worker, to testify as an expert regarding Child
Sexual Abuse Accommodation Syndrome (hereinafter CSAAS). To the
extent that defendant challenges the admissibility of such
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testimony in general, it is well settled that "[e]xpert testimony
regarding CSAAS may be admitted to explain behavior of a victim
that might appear unusual or that jurors may not be expected to
understand" (People v Gregory, 78 AD3d 1246, 1247 [2010], lv
denied 16 NY3d 831 [2011] [internal quotation marks and citation
omitted]; see People v Williams, 20 NY3d 579, 583-584 [2013];
People v Hughes, 114 AD3d 1021, 1024 [2014], lv denied 23 NY3d
1038 [2014]; People v Pereau, 45 AD3d 978, 980 [2007], lv denied
9 NY3d 1037 [2008]). Specifically, such testimony may be offered
to explain why the victim delayed in reporting the abuse (see
People v LoMaglio, 124 AD3d 1414, 1416 [2015]; People v Gayden,
107 AD3d 1428, 1428-1429 [2013], lv denied 22 NY3d 1138 [2014];
People v Maggio, 70 AD3d at 1260; People v Pereau, 45 AD3d at
980).
As to whether Dietz was qualified to offer testimony on
this topic, the trial court is vested with "the initial
responsibility of evaluating whether an expert possesses the
requisite skill, training, education, knowledge or experience
from which it can be assumed that the information imparted or the
opinion rendered is reliable" (People v Lashway, 112 AD3d 1222,
1223 [2013] [internal quotation marks and citations omitted]; see
People v Munroe, 307 AD2d 588, 591 [2003], lv denied 100 NY2d 644
[2003]). The expert's competency, in turn, "can be derived from
either formal training or [l]ong observation and actual
experience" (People v Lashway, 112 AD3d at 1223 [internal
quotation marks, citations and emphasis omitted]).
Here, Dietz testified at length regarding her educational
background, which included a Master's degree in social work, as
well as her relevant work experience. In this regard, Dietz
indicated that she specialized in "trauma related to sexual and
domestic violence" and, to that end, had interviewed or counseled
approximately 600 victims of rape or sexual abuse – roughly 60%
of whom were children. Dietz also outlined the training programs
that she had conducted for various community-based groups and
indicated that she had, on three prior occasions, testified in
court as a CSAAS expert. Based upon Dietz's training and
practical experience, "we are of the view that County Court
providently exercised its discretion in permitting [her] to
provide expert testimony" on the subject of CSAAS (People v
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Lashway, 112 AD3d at 1224 [internal quotation marks and citation
omitted]).
Further, contrary to defendant's assertion, Dietz did not
stray beyond the permissible confines "of expert testimony
explaining the common behaviors of victims of child sex abuse"
(People v Jabaut, 111 AD3d 1140, 1145 [2013], lv denied 22 NY3d
1139 [2014]). Dietz testified that she had not met and did not
know the victim, nor was she aware of the particular facts of
this case or the underlying charges against defendant, and at no
time did Dietz express any opinion as to either the victim's
credibility or defendant's guilt (see id. at 1145; People v
Gregory, 78 AD3d at 1247; People v Maggio, 70 AD3d at 1260-1261).
Additionally, although some of the behaviors identified by Dietz
were similar to those displayed by the victim in this case, Dietz
nonetheless spoke of such behaviors in general terms (see People
v LoMaglio, 124 AD3d at 1416), and nothing in the record suggests
that "the prosecutor tailored the hypothetical questions [posed
to Dietz] to include facts concerning the abuse that occurred in
this particular case" (People v Williams, 20 NY3d at 584).
Hence, no impermissible bolstering of the victim's testimony
occurred. Under these circumstances, County Court did not abuse
its discretion in permitting Dietz's testimony on the issue of
CSAAS.4
Finally, we find no merit to defendant's claim that the
sentence imposed was harsh and excessive. As noted previously,
defendant's sentence was reduced by operation of law to an
aggregate prison term of 50 years (see Penal Law § 70.30 [1] [e]
[vi]) and, in light of the protracted and exploitive nature of
defendant's crimes against the victim, "we find no abuse of
discretion or extraordinary circumstances warranting a reduction
of the sentence in the interest of justice" (People v Jabaut, 111
AD3d at 1148). Defendant's remaining arguments, to the extent
not specifically addressed, have been examined and found to be
lacking in merit.
4
We note that County Court included an appropriate
limiting instruction on this point in its final charge to the
jury.
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Garry, J.P., Lynch and Clark, JJ., concur.
ORDERED that the judgment is affirmed.
ENTER:
Robert D. Mayberger
Clerk of the Court