=================================================================
This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
-----------------------------------------------------------------
No. 167
The People &c.,
            Respondent,
        v.
William Cullen,
            Appellant.




          Kristen N. McDermott, for appellant.
          James P. Maxwell, for respondent.




MEMORANDUM:
          The order of the Appellate Division should be affirmed.
          Complainant, who was born in 1993, discovered the
identity of her biological father, defendant William Cullen, in
early 2006 when she was 12 years old.   She expressed a desire to
get to know him, and her mother arranged for the three of them

                              - 1 -
                                 - 2 -                       No. 167

to meet at a restaurant at a local mall.    In June 2006, just
after complainant turned 13 years old, she moved in with
defendant.    She resided with defendant until mid-October 2007,
and visited him on a few occasions later that fall over a
weekend.   On December 12, 2007, complainant entered the Cayuga
Home for Children (CHC) in Auburn, New York, where she had been
placed by Family Court.    Later in December 2007, complainant
discovered that she was pregnant.
             Complainant knew that defendant was the father because,
beginning in the summer of 2007, he had forced her to have sex
with him, including on her last weekend visit with him in
November 2007.    At first, she lied that the father was "David,"
someone whom she invented.    In the spring of 2008, however,
complainant dropped a "hint" about defendant's sexual conduct
towards her in a conversation with her mother.    She finally fully
disclosed the truth to a CHC counselor.    She later testified that
after her pregnancy was terminated, the counselor kept
"drilling," pressing her to reveal what was wrong, and
"eventually [complainant] just popped [because she] couldn't deal
with it anymore . . . [Defendant] just kept not being a father,
and . . . everything that he did built up and built up and built
up, and [she] ended up just saying everything."
             In March 2009, defendant was indicted for second-degree
rape (Penal Law § 130.30 [1]), second-degree incest (Penal Law §
255.26) and other crimes.    At his ensuing jury trial, Supreme


                                 - 2 -
                                 - 3 -                       No. 167

Court, over objection, allowed the prosecutor to ask
complainant's mother if she "remember[ed] having a conversation
with [complainant] . . . regarding conduct by her father," and
when this occurred; and if she remembered "receiving information
that [complainant] had made a disclosure to someone at CHC," and
when this occurred.   Again over objection, the CHC counselor was
asked if she had ever had a conversation with complainant about
her father, and if, on April 14, 2008, complainant made a
disclosure to her "about some sexual misconduct by [defendant]."
The counselor answered "yes" to both questions, and the judge
advised the jury that this testimony "[was] not evidence that
[defendant] did anything wrong.    It just explains the subsequent
conduct of the witness.   It's not evidence that [defendant] did
anything wrong, it's hearsay."
          The jury convicted defendant of rape, incest and other
sexual crimes; Supreme Court sentenced him to 15 years in prison,
to be followed by 5 years of postrelease supervision.   Defendant
appealed, and the Appellate Division unanimously affirmed (110
AD3d 1474 [4th Dept 2013]).   Citing its earlier decision in
People v Ludwig (104 AD3d 1162 [4th Dept 2013]), the court
rejected defendant's claim of improper bolstering because the
objected-to testimony of complainant's mother and the CHC
counselor "was not admitted for its truth" (id. at 1475).      The
Appellate Division also disallowed defendant's other claims (that
pervasive misconduct permeated the prosecutor's summation; and


                                 - 3 -
                              - 4 -                          No. 167

that the trial judge improperly constructively amended the
indictment and admitted evidence of prior bad acts), to the
extent preserved, and concluded that defendant had received the
effective assistance of counsel.    A Judge of this Court granted
defendant permission to appeal (22 NY3d 1087 [2014]), and we now
affirm.
          The trial judge did not abuse his discretion when he
allowed the People to elicit testimony about the fact and timing
of complainant's revelations for the nonhearsay purpose of
explaining the events kicking off the investigative process that
led to the charges against defendant (see generally People v
Ludwig, __ NY3d __, 2014 N.Y. LEXIS ___ [2014] [decided today]).
Complainant admittedly passed up many opportunities to report
defendant's alleged sexual misconduct, and the defense attributed
her accusations to the wrath of a troubled girl trying to get
even with defendant for not winning her release from the CHC
group home and taking her back to live with him.   The jury was
therefore permitted to consider evidence of the circumstances of
complainant's delayed disclosure.   Finally, we consider
defendant's claim of ineffective assistance of counsel to be
without merit.




                              - 4 -
People v Cullen
No. 167




LIPPMAN, Chief Judge (concurring in result):
              For the reasons stated in my dissent in the companion
case of People v Ludwig, I disagree with the majority's reasoning
in this case.      However, here the court confined the statements to
the report alone, and prohibited witnesses from repeating the
complainant's statements concerning the description of the crime
itself.    Given the overwhelming evidence against defendant in
this case and the less prejudicial nature of the error, I would
find the error here harmless (People v McDaniel, 81 NY2d 10, 18
[1993]).


*   *     *    *   *   *   *   *    *      *   *   *   *   *   *   *   *
Order affirmed, in a memorandum. Judges Graffeo, Read, Pigott
and Abdus-Salaam concur. Chief Judge Lippman concurs in result
in an opinion in which Judge Rivera concurs. Judge Smith concurs
in result for reasons stated in his concurring opinion in People
v Ludwig, ___ NY3d ___ (decided today).

Decided October 23, 2014




                                   - 1 -
