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

508
KA 07-01185
PRESENT: SMITH, J.P., FAHEY, CARNI, SCONIERS, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JOHN GAYDEN, JR., DEFENDANT-APPELLANT.


EFTIHIA BOURTIS, ROCHESTER, FOR DEFENDANT-APPELLANT.

JOHN GAYDEN, JR., DEFENDANT-APPELLANT PRO SE.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NICOLE M. FANTIGROSSI OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Joseph D. Valentino, J.), rendered April 20, 2007. The judgment
convicted defendant, upon a jury verdict, of course of sexual conduct
against a child in the first degree.

     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 course of sexual conduct against a child in the
first degree (Penal Law § 130.75 [1] [b]). Viewing the evidence in
light of the elements of the crime as charged to the jury (see People
v Danielson, 9 NY3d 342, 349), we reject defendant’s contention that
the verdict is against the weight of the evidence (see generally
People v Bleakley, 69 NY2d 490, 495). We further reject defendant’s
contention that Supreme 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 Filer, 97 AD3d 1095, 1096, lv
denied 19 NY3d 1025, quoting People v Carroll, 95 NY2d 375, 387; see
generally People v Diaz, 20 NY3d 569, 575-576). In this case, the
People properly offered the expert’s testimony “for the purpose of
instructing the jury about possible reasons why a child might not
immediately report incidents of sexual abuse” (Carroll, 95 NY2d at
387), and the court properly prevented the prosecutor from
“tailor[ing] hypothetical questions to include facts concerning the
abuse that occurred in this particular case” (People v Williams, 20
NY3d 579, 584).
                                 -2-                           508
                                                         KA 07-01185

     Contrary to defendant’s contention, the court did not err in
denying his challenge for cause to a prospective juror. “Although the
prospective juror initially expressed ‘a state of mind that [was]
likely to preclude [him] from rendering an impartial verdict based
upon the evidence adduced at the trial’ (CPL 270.20 [1] [b]), [he]
ultimately stated unequivocally that [he] could follow the law and be
fair and impartial” (People v Gladding, 60 AD3d 1401, 1402, lv denied
12 NY3d 925; see People v Johnson, 94 NY2d 600, 614). Additionally,
we conclude that the sentence is not unduly harsh or severe.

     In his main and pro se supplemental briefs, defendant contends
that he was denied his right to effective assistance of counsel. We
reject that contention. Viewing the evidence, the law and the
circumstances of this case, in totality and as of the time of the
representation, we conclude that defendant received meaningful
representation (see generally People v Baldi, 54 NY2d 137, 147).

     In his pro se supplemental brief, defendant contends that the
prosecutor’s summation and the court’s charge impermissibly changed
the theory of the prosecution. Although defendant failed to preserve
that contention for our review, we address it because “the right of an
accused to be tried and convicted of only those crimes and upon only
those theories charged in the indictment is fundamental and
nonwaivable” (People v McCallar, 53 AD3d 1063, 1064, lv denied 11 NY3d
833 [internal quotation marks omitted]). We conclude that “defendant
received the requisite ‘ “fair notice of the accusations against
him” ’ ” (id. at 1065, quoting People v Grega, 72 NY2d 489, 495). The
indictment included allegations that, between January 26 and August
31, 2006, defendant “engaged in two or more acts of sexual conduct,
which included at least one act of oral sexual conduct and anal sexual
conduct, with a child less than thirteen years old.” The court,
however, instructed the jury that the elements of the charged offense
included the commission of “at least one act of sexual intercourse,
oral sexual conduct, anal sexual conduct, or aggravated sexual conduct
or contact” (emphasis added), and the charge included the statutory
definitions of the terms “sexual intercourse” and “aggravated sexual
contact.” Nevertheless, at trial there was no evidence of sexual
intercourse or aggravated sexual contact. Thus, “[w]hile the trial
court should not have charged [the] statutory definitions of [sexual
intercourse and aggravated sexual contact], but instead should have
tailored its instructions to the case before it, on this record . . .
the additional portion of the charge had no potential for prejudicing
defendant, and thus was harmless error” (Grega, 72 NY2d at 497).




Entered:   June 7, 2013                        Frances E. Cafarell
                                               Clerk of the Court
