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

903
KA 12-00604
PRESENT: SMITH, J.P., PERADOTTO, CARNI, LINDLEY, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

CLARENCE M. JUSTICE, DEFENDANT-APPELLANT.


LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (MICHAEL S. DEAL OF COUNSEL),
FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (NICHOLAS T. TEXIDO
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (John L.
Michalski, A.J.), rendered September 29, 2010. The judgment convicted
defendant, upon a jury verdict, of rape in the third degree (two
counts) and criminal sexual act in the third degree (two counts).

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by reversing those parts convicting
defendant of rape in the third degree under Penal Law § 130.25 (2) and
criminal sexual act in the third degree under Penal Law § 130.40 (2)
and dismissing counts one and three of the indictment, and as modified
the judgment is affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of two counts each of rape in the third degree
(Penal Law § 130.25 [2], [3]) and criminal sexual act in the third
degree (§ 130.40 [2], [3]). We reject defendant’s contention that the
evidence is legally insufficient to support the conviction with
respect to the second and fourth counts of the indictment (see
generally People v Bleakley, 69 NY2d 490, 495). Those counts charge
defendant with rape in the third degree and criminal sexual act in the
third degree for engaging in vaginal and anal intercourse with the
victim without her consent, “where such lack of consent [wa]s by
reason of some factor other than incapacity to consent” (§§ 130.25
[3]; 130.40 [3]). The testimony of the victim that defendant had anal
and vaginal intercourse with her after she repeatedly told him no, and
that “it couldn’t happen,” is sufficient to establish a prima facie
case with respect to those counts (see generally People v Carroll, 95
NY2d 375, 383; People v O'Donnell, 138 AD2d 896, 896-897, lv denied 72
NY2d 864). In addition, the People introduced evidence that sperm was
found in the underwear that the victim put on immediately after the
sexual conduct and that the DNA in that sperm matched that of
defendant. Furthermore, viewing the evidence in light of the elements
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                                                         KA 12-00604

of those crimes as charged to the jury (see People v Danielson, 9 NY3d
342, 349), we conclude that the verdict with respect to those counts
is not against the weight of the evidence (see generally Bleakley, 69
NY2d at 495).

     We agree with defendant, however, that the evidence is legally
insufficient to support the conviction of counts one and three of the
indictment, charging him with rape in the third degree and criminal
sexual act in the third degree, respectively. In both of those
counts, the indictment alleged that the victim was less than 17 years
of age and that defendant was older than 21 years of age (see Penal
Law §§ 130.25 [2]; 130.40 [2]). The only evidence submitted by the
People concerning defendant’s age, however, was the testimony of a
police officer that he learned during the course of his investigation
that defendant was born in November 1973 and thus that defendant was
35 years old at the time of the incident. We agree with defendant
that Supreme Court erred in overruling his hearsay objection to that
testimony. That “out-of-court statement[] [was] offered for the truth
of the facts asserted [therein] and do[es] not fall within any
recognized exception to the hearsay rule” (People v Geddes, 49 AD3d
1255, 1256, lv denied 10 NY3d 863; see generally People v Settles, 46
NY2d 154, 166-167). Indeed, the People failed to establish that the
officer obtained the statement from defendant regarding his date of
birth under circumstances demonstrating that the statement was against
his penal interest or that the testimony was admissible pursuant to
some other exception to the hearsay rule (cf. People v Griffin, 48
AD3d 1233, 1236, lv denied 10 NY3d 840). Thus, “there is no
[admissible] evidence of defendant’s age, and the circumstantial
evidence relied upon by the People does not establish that defendant
was at least 21 years old at the time of the crime” (People v Castro,
286 AD2d 989, 990, lv denied 97 NY2d 680). We therefore modify the
judgment accordingly.

     We reject defendant’s further contention that the court erred in
permitting an expert to testify regarding the child sexual abuse
accommodation syndrome (CSAAS). “Defendant complains that the
expert’s testimony was not adequately constrained because certain of
the hypothetical questions too closely mirrored the [victim]’s
circumstances and therefore improperly bolstered or vouched for [her]
credibility so as to prove that the charged crimes occurred. To the
extent defendant now complains of specific questions, his argument is
not preserved [for our review] because the [majority of those]
questions were not objected to at trial” (People v Spicola, 16 NY3d
441, 465-466, cert denied ___ US ___, 132 S Ct 400). In any event,
the Court of Appeals has “ ‘long held’ evidence of psychological
syndromes affecting certain crime victims[, including CSAAS,] to be
admissible for the purpose of explaining behavior that might be
puzzling to a jury” (id. at 465; see People v Carroll, 95 NY2d 375,
387). Additionally, contrary to defendant’s contention, the court
properly provided the jury with the standard Criminal Jury
Instructions charge on expert testimony, rather than the expanded
limiting instruction requested by defendant (see People v Gregory, 78
AD3d 1246, 1247-1248, lv denied 16 NY3d 831).
                                 -3-                           903
                                                         KA 12-00604

     We also reject defendant’s contention that the court abused its
discretion in permitting the People to introduce evidence in their
direct case that defendant engaged in other uncharged sexual conduct
with the victim on the day of the incident and that he made veiled
threats to her. That evidence was admissible to complete the
narrative of the events charged in the indictment and to explain how
the victim’s fear of defendant may have led to her delay in reporting
the incident (see People v Shofkom, 63 AD3d 1286, 1287, lv denied 13
NY3d 799, appeal dismissed 13 NY3d 933; People v Workman, 56 AD3d
1155, 1156-1157, lv denied 12 NY3d 789; People v Higgins, 12 AD3d 775,
777-778, lv denied 4 NY3d 764). Consequently, “the evidence in this
case was not propensity evidence . . . ; it provided necessary
background information on the nature of the relationship and placed
the charged conduct in context” (People v Dorm, 12 NY3d 16, 19).

     Defendant failed to preserve for our review his further
contention that the court negated the presumption of innocence by
instructing the jurors not to deliberate prior to the conclusion of
the trial without also instructing the jury at that time that
defendant is presumed innocent. Contrary to defendant’s assertion,
that contention does not raise a mode of proceedings error, and thus
preservation is required. Notably, defendant’s challenge is not to
the instruction that the court gave, which was proper (see generally
People v Horney, 112 AD2d 841, 843, lv denied 66 NY2d 615); rather, as
stated above, his challenge is to the court’s failure to provide a
presumption of innocence instruction at that time in addition to
providing that instruction as part of its final instructions.
Defendant, however, failed to preserve that contention for our review
“by a timely objection or request to charge” (People v Bonaparte, 78
NY2d 26, 31 n), and we decline to exercise our power to review that
contention as a matter of discretion in the interest of justice (see
CPL 470.15 [6] [a]).

     Contrary to defendant’s contention, the court did not err in
permitting a witness to testify that, two days after the incident, the
victim reported that she had been the victim of a sexual attack. In
defense counsel’s opening statement and cross-examination of the
victim, he raised the defense that the victim had fabricated the
incident to “deflect[] attention from herself” and her drug use.
Where, as here, “a ‘witness’[s] testimony is assailed—either directly
or inferentially—as a recent fabrication, the witness may be
rehabilitated’ with a prior consistent statement made at a time
predating the motive to fabricate” (People v Rosario, 17 NY3d 501,
513, quoting People v McDaniel, 81 NY2d 10, 18). Here, defendant
contended that the victim invented a story of rape after she was
caught with drugs, but the witness testified that the victim reported
the rape before that time.

     The majority of defendant’s contentions with respect to alleged
instances of prosecutorial misconduct during the summation are not
preserved for our review (see CPL 470.05 [2]). In any event, even
assuming, arguendo, that some of the prosecutor’s comments were not a
fair response to defense counsel’s summation or were not within the
“ ‘broad bounds of rhetorical comment permissible in closing
                                 -4-                          903
                                                        KA 12-00604

argument’ ” (People v Williams, 28 AD3d 1059, 1061, affd 8 NY3d 854,
quoting People v Galloway, 54 NY2d 396, 399), we conclude that “they
were not so egregious as to deprive defendant of a fair trial” (People
v McEathron, 86 AD3d 915, 916, lv denied 19 NY3d 975; see People v
Rivera, 281 AD2d 927, 928, lv denied 96 NY2d 906; People v Walker, 234
AD2d 962, 963, lv denied 89 NY2d 1042).

     We agree with defendant, however, that the “court erred in
admitting testimony concerning defendant’s decision not to meet with
the police . . . and in allowing the prosecutor to comment on
defendant’s decision on summation” (People v Kobza, 66 AD3d 1387,
1389, lv denied 13 NY3d 939; see generally People v De George, 73 NY2d
614, 617-618). Nevertheless, we conclude that there is “no reasonable
possibility that the error might have contributed to defendant’s
conviction and thus that the error is harmless beyond a reasonable
doubt” (Kobza, 66 AD3d at 1389; see generally People v Crimmins, 36
NY2d 230, 237).

     The sentence is not unduly harsh or severe. We have considered
defendant’s remaining contentions and conclude that none requires
reversal or further modification of the judgment.




Entered:   October 5, 2012                     Frances E. Cafarell
                                               Clerk of the Court
