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

29
KA 11-01908
PRESENT: SCUDDER, P.J., FAHEY, CARNI, SCONIERS, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DONALD C. FILER, DEFENDANT-APPELLANT.


DAVID R. ADDELMAN P.C., BUFFALO (DAVID R. ADDELMAN OF COUNSEL), FOR
DEFENDANT-APPELLANT.

MICHAEL J. VIOLANTE, DISTRICT ATTORNEY, LOCKPORT (THOMAS H. BRANDT OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Niagara County Court (Richard C.
Kloch, Sr., A.J.), rendered August 7, 2008. The judgment convicted
defendant, upon a jury verdict, of course of sexual conduct against a
child in the first degree, criminal sexual act in the first degree,
predatory sexual assault against a child, and sexual abuse in the
first degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by reversing that part convicting
defendant of criminal sexual act in the first degree under count two
of the indictment and dismissing that count of the indictment without
prejudice to the People to re-present any appropriate charges under
that count of the indictment to another grand jury and as modified the
judgment is affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of course of sexual conduct against a child in the
first degree (Penal Law § 130.75 [1] [a]), criminal sexual act in the
first degree (§ 130.50 [3]), predatory sexual assault against a child
(§ 130.96), and sexual abuse in the first degree (§ 130.65 [3]).

     Defendant failed to preserve for our review his contention that
he was deprived of his right to a public trial when County Court
ordered his friend to leave the courtroom (see People v Hamilton, 45
AD3d 1396, lv denied 10 NY3d 765). In any event, that contention is
without merit inasmuch as the record establishes that the court acted
within its discretion in order to “preserve order and decorum in the
courtroom” (People v Colon, 71 NY2d 410, 416, cert denied 487 US
1239).

     Defendant also failed to preserve for our review his contention
that counts one, four and five of the indictment are facially
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                                                         KA 11-01908

duplicitous (see People v Becoats, 71 AD3d 1578, 1579, affd 17 NY3d
643, cert denied ___ US ___ [Apr. 23, 2012]; People v Sponburgh, 61
AD3d 1415, 1416, lv denied 12 NY3d 929). We decline to exercise our
power to review defendant’s contention as a matter of discretion in
the interest of justice (see CPL 470.15 [6] [a]). Although count two
is not duplicitous on its face inasmuch as it alleges a single act
(see CPL 200.50 [3] - [7]; People v Keindl, 68 NY2d 410, 417-418), we
agree with defendant that it was rendered duplicitous by the testimony
of the victim tending to establish the commission of multiple criminal
acts during the period of time specified therein (see People v McNab,
167 AD2d 858). “Because defendant’s right to be tried and convicted
of only those crimes charged in the indictment is fundamental and
nonwaivable,” defendant’s contention regarding count two does not
require preservation (id.). We therefore modify the judgment by
reversing that part convicting defendant of criminal sexual act in the
first degree under count two of the indictment and dismissing that
count without prejudice to the People to re-present any appropriate
charges under that count to another grand jury (see People v
Bracewell, 34 AD3d 1197, 1198-1199).

     Contrary to defendant’s contention, he was not entitled to his
own copy of the videotape of the victim’s testimony presented to the
grand jury, which defense counsel had an opportunity to view (see
People v Smith, 289 AD2d 1056, 1058, lv denied 98 NY2d 641). We
reject defendant’s further contention that the court erred in allowing
the People to present the testimony of an expert witness concerning
child sexual abuse accommodation syndrome (CSAAS). Expert testimony
concerning CSAAS is admissible to assist the jury in understanding the
unusual conduct of victims of child sexual abuse where, as here, the
testimony is general in nature and does “not attempt to impermissibly
prove that the charged crimes occurred” (People v Carroll, 95 NY2d
375, 387; see People v Bassett, 55 AD3d 1434, 1436-1437, lv denied 11
NY3d 922; see also People v Gillard, 7 AD3d 540, 541, lv denied 3 NY3d
659). We also reject defendant’s contention that the court erred in
permitting the People’s forensic pediatrician to testify that the
absence of physical injuries was not inconsistent with sexual abuse of
a child (see generally People v Shelton, 307 AD2d 370, 371, affd 1
NY3d 614).

     Defendant failed to preserve for our review his contentions that
he was denied his rights to due process and equal protection when the
People prosecuted him for predatory sexual assault against a child
rather than criminal sexual act in the first degree, and that the
People also thereby violated the separation of powers clause of the
United States Constitution (see generally People v Jackson, 71 AD3d
1457, 1458, lv denied 14 NY3d 888; People v Schaurer, 32 AD3d 1241).
In any event, those contentions are without merit (see People v
Lawrence, 81 AD3d 1326, 1326-1327, lv denied 17 NY3d 797). Finally,
we conclude that the sentence is not unduly harsh or severe.


Entered:   July 6, 2012                         Frances E. Cafarell
                                                Clerk of the Court
