show a reasonable probability that an earlier disclosure would
have changed the trial's result." United States v. Dean,
55 F.3d 640, 663 (D.C.Cir. 1995). Because "[n]either Brady. . . .
nor any other case requires that disclosure under Brady must be
made before trial," United States ex rel. Lucas v. Regan,
503 F.2d 1, 3 n. 1 (2d Cir. 1974), due process simply requires that
disclosure must not occur so late as to prevent the defendant
from "mak[ing] effective use of it." United States v. Paxson,
861 F.2d 730, 737 (D.C.Cir. 1988); see also United States v.
McPartlin, 595 F.2d 1321, 1346 (7th Cir. 1979) (relevant
question is "whether the disclosure came so late as to prevent
the defendant from receiving a fair trial").
This rule does not insulate prosecutors from ever violating
Brady as long as they turn over material sometime before trial
commences or before it becomes relevant during the course of the
trial. Some Brady material "is of such significance that it
must be provided to the defendant well in advance of the trial so
as `to allow the defense to use the favorable material
effectively in the preparation and presentation of its case.'"
United States v. Green, 144 F.R.D. 631, 645 (W.D.N.Y. 1992)
(quoting United States v. Pollack, 534 F.2d 964, 973 (D.C.Cir.
1976)); see also United States v. Deutsch, 373 F. Supp. 289, 290
(S.D.N.Y. 1974). Admittedly, the People's failure to promptly
turn over the relevant grand jury testimony in this case was
wrong.*fn3 When a victim, whose alleged assault forms the basis
for various counts in the indictment specifically testifies
before the grand jury that she was never assaulted by the
defendant, the materiality of such testimony to the defendant's
case is obvious. The People should have provided the petitioner
with this testimony well before the eve of trial, since that
testimony was given approximately two years prior to the
commencement of trial. Nonetheless, we now hold that the People's
handling of this evidence, although careless, does not rise to
the level of constitutional violation.
Crucial to our assessment is that the petitioner was provided
with these minutes before the trial commenced and before that
testifying witness took the stand, and petitioner has presented
this court with no evidence that his effective use of that
evidence was so impacted as "to put the whole case in such a
different light as to undermine confidence in the verdict."
Kyles v. Whitley, 514 U.S. 419, 435, 115 S.Ct. 1555, 131
L.Ed.2d 490(1995). Since no suppression of the evidence occurred
here, petitioner's claim is grounded in the unsupported and
improbable assertion that "the production was too late to be
useful." United States v. Tarantino, 846 F.2d 1384, 1416
Petitioner does not allege, nor does our own analysis allow us
to imagine, that the defense strategy would have been altered by
earlier knowledge of this evidence. See, e.g. United States v.
Romero, 54 F.3d 56, 61 (2d Cir. 1995). Nor does petitioner
allege that the untimely production of this evidence prevented
him from uncovering additional evidence related to it. As we
construe the limited record before us, this Brady material was
only useful to impeach the testimony of this particular witness,
and, as the Appellate Division explained, petitioner "was given a
full opportunity to utilize the prior testimony during trial."
White, 229 A.D.2d at 611, 645 N.Y.S.2d 562. In fact, the grand
jury testimony was not even useful for impeachment at trial,
since the witness continued to deny all allegations of abuse
against petitioner at trial. We also note that petitioner's
lawyer, upon receiving and reviewing the grand jury testimony,
made no application for a continuance. See United States v.
Wilson, 160 F.3d 732, 741 (D.C.Cir. 1998), petition for cert.
filed, (U.S. Apr. 29, 1999) (No. 989187). Finally, and of utmost
importance, petitioner was found not guilty of
those counts directly related to that particular alleged victim's
testimony (Counts 33 and 34), so that an earlier disclosure of
the evidence could not have affected the outcome of the trial.
Paxson, 861 F.2d at 737; see also People v. Cortijo,
70 N.Y.2d 868, 517 N.E.2d 1349, 523 N.Y.S.2d 463 (1987).*fn4
Indeed, once the witness had denied that she was assaulted by
petitioner, the grand jury testimony was unnecessary, and even
inadmissible except as a prior consistent statement to negate an
imputation of recent fabrication or improper influence or motive.
See Fed.R.Evid. 801(d)(1). We are unpersuaded by petitioner's
claim that even though the late delivery of the grand jury
testimony of one alleged victim could not have prejudiced him
because he was acquitted of the charge of molesting that person,
it somehow impaired his defense relative to the abuse of other
alleged victims. Since petitioner presents the court with no
evidence, or even speculation, as to how the tardy delivery of
this material prejudiced his case, we cannot hold that there is a
reasonable probability that, had this grand jury testimony been
turned over more promptly, the result at trial would have been
different. Bagley, 473 U.S. at 682, 105 S.Ct. 3375.
III. Child Sexual Abuse Syndrome Testimony
Child sexual abuse syndrome is an analytical concept developed
by mental health professionals to explain common psychological
patterns exhibited by children who have been sexually abused.
Petitioner challenges the County Court's decision to allow a
social worker to testify at his trial about this syndrome. We
reject petitioner's claim for the following reasons.
It is well-established in New York that testimony on child
sexual abuse syndrome is generally permissible. See, e.g.,
People v. Taylor, 75 N.Y.2d 277, 552 N.E.2d 131, 552 N.Y.S.2d 883
(1990) (analogous rape trauma syndrome); Matter of Nicole
V., 71 N.Y.2d 112, 518 N.E.2d 914, 524 N.Y.S.2d 19 (1987)
(testimony admitted in non-criminal proceedings); People v.
Penwarden, 258 A.D.2d 902, 685 N.Y.S.2d 557 (1999); People v.
McGuinness, 245 A.D.2d 701, 665 N.Y.S.2d 752 (1997); People v.
Grant, 241 A.D.2d 340, 659 N.Y.S.2d 474 (1997); People v.
Weaver, 222 A.D.2d 1046, 635 N.Y.S.2d 861 (1995); People v.
Shay, 210 A.D.2d 735, 620 N.Y.S.2d 189 (1994). The Court of
Appeals made clear in Taylor that testimony regarding child
sexual abuse syndrome is permissible when admitted not to prove
that the defendant committed the crimes charged, but only to
explain behavior that would otherwise appear unusual to the
average juror, such as why a victim of sexual abuse might not
immediately report his or her abuse. Taylor, 75 N.Y.2d 277,
552 N.Y.S.2d 883, 552 N.E.2d 131; see also McGuinness, 245 A.D.2d
at 702, 665 N.Y.S.2d 752; Grant, 241 A.D.2d at 341,
659 N.Y.S.2d 474. The People's expert in this case was careful not to
give testimony that attempted to validate the victims or
corroborate their truthfulness, nor did she give any testimony
suggesting her belief that the attacks actually took place. In
fact, the expert immediately testified that she did not even
examine the alleged victims, and specifically explained that her
testimony was "not to be used for the purposes of so-called
validations[,] which means to diagnose or determine whether in
fact such abuse has occurred." Trial Transcript at 291, 307; see
also Commonwealth v. Dunkle, 529 Pa. 168, 172, 602 A.2d 830, 831
(Pa. 1992). She did not testify as to the children's credibility.
She did not even compare the characteristics of the syndrome with
the children's behavior. The social worker simply testified as to
the general characteristics of a sexually abused child, an area
the ken of the typical juror." People v. Rodriguez,
690 N.Y.S.2d 197 (N.Y.App. Div. 1999); see also State v. Edelman,
593 N.W.2d 419, 423-24 (S.D. 1999). More specifically, she
limited her testimony to an explanation of the five emotional
phases commonly associated with the syndrome, including
"engagement, sexual interaction, secrecy, disclosure, and
suppression." Trial Transcript at 293. Because the expert
fastidiously avoided giving any testimony tending to "prov[e]
that a rape occurred," Taylor, 75 N.Y.2d at 293, 552 N.Y.S.2d 883,
552 N.E.2d 131, and instead focused solely on an objective
recitation of common emotional responses exhibited by victim's of
child sexual abuse, her testimony was permissible.*fn5
IV. Claim to Set Aside Verdict Based Upon "New" Evidence