Judgment, Supreme Court, New York County (Gregory Carro, J.), rendered June 18, 2007, convicting defendant, after a jury trial, of course of sexual conduct against a child in the first degree, and sentencing him to a term of 20 years, affirmed.
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.
Tom, J.P., Saxe, Sweeny, Acosta, Abdus-Salaam, JJ.
The court properly admitted the victim's disclosure to her cousin, as it was made during the period wherein she was being sexually abused. We have held that "the prompt outcry exception" is applicable to "an outcry made... at the end of a course of sexual conduct" (People v Stuckey, 50 AD3d 447, 448 , lv denied 11 NY3d 742 ). Although the victim's disclosure to her aunt did not qualify under that exception, any error in admitting that evidence was harmless (see People v Crimmins, 36 NY2d 230 ; see also People v Leon, 209 AD2d 342, 343 , lv denied, 84 NY2d 1034 ).
Defendant did not preserve his other challenges to prior consistent statements by the victim, and we decline to review them in the interest of justice. As an alternative holding, we reject them on the merits. The statements at issue, contained in medical records, were sufficiently related to diagnosis and treatment to be admissible (see People v Rogers, 8 AD3d 888, 892 ; People v Bailey, 252 AD2d 815 ), lv denied 92 NY2d 922 ). A statement made by the victim to a detective was rendered admissible by the prior defense cross-examination of the detective regarding the same matter (see People v Melendez, 55 NY2d 445, 451-452 ; People v Torre, 42 NY2d 1036, 1037 ). A trial court has the discretion to decide "door opening" issues "by considering whether, and to what extent, the evidence or argument said to open the door is incomplete and misleading, and what if any otherwise inadmissible evidence is reasonably necessary to correct the misleading impression" (People v Massie, 2 NY3d 179, 184 ). Here, the court's ruling was within its discretion and should not be disturbed.
Defendant's challenges to the People's summation are unpreserved, and we decline to review them in the interest of justice. As an alternative holding, we also find that the challenged portions of the summation constituted permissible argument (see People v Overlee, 236 AD2d 133 , lv denied 91 NY2d 976 ; People v D'Alessandro, 184 AD2d 114, 118-119 , lv denied 81 NY2d 884 ), with the exception of arguments that tended to treat the expert testimony on typical victim behavior as evidence that the alleged sexual conduct actually occurred (see People v Banks, 75 NY2d 277, 293 ). While the prosecutor improperly cited expert testimony to suggest that the victim's change in behavior was indicative of her having been abused, we find no basis to disturb the jury's determination regarding the credibility of the victim's strong testimony, and find the error to be harmless in any event (see People v Bennett, 273 AD2d 108 , lv denied 96 NY2d 797 ).
To the extent the existing record permits review, we find that defendant received effective assistance under the state and federal standards (see People v Benevento, 91 NY2d 708, 713-714 ; see also Strickland v Washington, 466 US 668 ). Defense counsel's failure to object, or to make specific objections to the prosecutor's summation and to certain prior consistent statements by the victim, did not cause defendant any prejudice or deprive him of a fair trial. Even if trial counsel had successfully objected to the evidence and summation comments that defendant now challenges on appeal, we do not find any reasonable probability that the outcome of the trial would have been different. All concur except Acosta and Abdus-Salaam, JJ. who dissent in a memorandum by Abdus-Salaam, J. as follows: ABDUS-SALAAM, J. (dissenting)
I would reverse the conviction based on the trial court's erroneous admission of improper expert testimony as well as clearly hearsay evidence. Given that the only evidence of defendant's guilt was the testimony of the 11-year-old complaining witness and that there was no physical evidence, I believe the errors were not harmless and that defendant is entitled to a new trial. I cannot agree with the majority's conclusion that there is no reasonable probability these errors, which were substantial, affected the outcome of the trial. Furthermore, to the extent that certain evidentiary errors were not preserved for our review, I believe we should exercise our power to address them as a matter of discretion in the interest of justice, given the cumulative effect of the errors committed here.
In July 2006 the grand jury returned an indictment against defendant with a single count of course of sexual conduct against a child based on the allegations of a girl, then age 10, that defendant, her stepfather's best friend, had sexually molested her two or more times between December 2002 and December 2004, while he was baby-sitting for her and her brothers. These allegations were made in the summer of 2006. At the trial in May 2007, the girl testified that defendant had touched her "front [private] part" and "put his front part in my back part." Defendant was 36 years old and had no prior criminal history. He testified in his defense and asserted his innocence throughout the case.
The majority acknowledges it was error for the prosecutor to use the expert testimony of the psychologist to prove that abuse occurred, but concludes this error was harmless. While my colleagues find no basis to disturb the jury's determination regarding the credibility of the victim's "strong testimony," I believe that this error, along with the other errors, tainted the trial. The rationale for the rule that expert testimony cannot be used to show that the victim demonstrated behavior consistent with other victims of abuse is that "the admission of such testimony would be unduly prejudicial since, although the presence of behavioral symptoms does not necessarily indicate that an act of sexual abuse took place, the clear implication of such testimony is that it was more likely than not that the child had been sexually abused" (People v Shay, 210 AD2d 735, 736 [1994, emphasis added], lv denied 85 NY2d 980 ). I am not persuaded that this unduly prejudicial testimony did not affect the outcome of the trial.
I disagree with the majority's conclusion that there is no merit to defendant's challenges to the admission of prior consistent statements by the victim. There was no proper basis to admit these prior statements, which were offered to the jury through the testimony of several witnesses.
It was error to permit the pediatric nurse to testify about statements the child had made to her in the course of a forensic examination conducted at the Children's Advocacy Center in July 2006, and to admit the unredacted records containing the nurse's notes about descriptions of the alleged abuse given by the child. Contrary to the majority's conclusion that the statements at issue were sufficiently related to diagnosis and treatment to be admissible, it is evident that the purpose of the nurse's examination, which was arranged by law enforcement and was conducted over a year after the alleged abuse had ended, was for the purpose of a criminal investigation.
Therefore, all of the statements made by the child during the course of the forensic examination were inadmissible (see People v Ballerstein, 52 AD3d 1192 ). In contrast, both People v Rogers (8 AD3d 888 ) and People v Bailey (252 AD2d 815 , lv denied 92 NY2d 922 ), relied upon by the majority, involved statements contained in a hospital record made ...