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People v. Spicola

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department


April 24, 2009

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
MICHAEL SPICOLA, DEFENDANT-APPELLANT.

Appeal from a judgment of the Erie County Court (Michael L. D'Amico, J.), rendered August 9, 2007. The judgment convicted defendant, upon a jury verdict, of sodomy in the first degree (six counts), sexual abuse in the first degree (three counts) and endangering the welfare of a child.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

PRESENT: SCUDDER, P.J., MARTOCHE, FAHEY, PERADOTTO, AND GREEN, JJ.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum

Defendant appeals from a judgment convicting him upon a jury verdict of six counts of sodomy in the first degree (Penal Law former § 130.50 [3]), three counts of sexual abuse in the first degree (§ 130.65 [3]) and one count of endangering the welfare of a child (§ 260.10 [1]). We reject defendant's contentions that County Court erred in admitting expert testimony concerning child sex abuse accommodation syndrome (see People v Carroll, 95 NY2d 375, 387; People v Miles, 294 AD2d 930, lv denied 98 NY2d 678), as well as statements made by the victim concerning the incidents at issue to a nurse practitioner that were relevant to the victim's diagnosis and treatment (see People v White, 306 AD2d 886, lv denied 100 NY2d 625). Contrary to defendant's further contention, "[t]he court properly precluded defendant from introducing evidence concerning his reputation for truth and veracity, because that evidence did not relate to a trait involved in the charges of . . . sodomy, sexual abuse or endangering the welfare of a child" (People v Fanning, 209 AD2d 978, 978, lv denied 85 NY2d 908; see People v Renner, 269 AD2d 843, 844).

Defendant failed to preserve for our review his challenge to the court's preliminary jury instructions (see CPL 470.05 [2]; People v Giddens, 202 AD2d 976, lv denied 83 NY2d 871), and we decline to exercise our power to review that challenge as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). Considering all of the relevant circumstances, we conclude that the time frames set forth in the indictment were sufficiently specific to enable defendant to prepare a defense (see People v Furlong, 4 AD3d 839, 840-841, lv denied 2 NY3d 739; see generally People v Watt, 81 NY2d 772, 774-775). We reject the contention of defendant that defense counsel was ineffective in failing to preserve certain contentions for our review. " Deprivation of appellate review . . . does not per se establish ineffective assistance of counsel' . . . but, rather, a defendant must also show that his or her contention would be meritorious on appellate review," and defendant failed to make that showing (People v Bassett, 55 AD3d 1434, 1438, lv denied 11 NY3d 922). Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349), and according great deference to the jury's resolution of credibility issues, we conclude that the verdict is not contrary to the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495). The general motion by defendant for a trial order of dismissal at the close of proof did not preserve for our review his challenge to the legal sufficiency of the evidence (see People v Gray, 86 NY2d 10, 19). Finally, the sentence is not unduly harsh or severe.

20090424

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