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

224
KA 11-00808
PRESENT: WHALEN, P.J., SMITH, CARNI, NEMOYER, AND CURRAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

TERRY L. DRAKE, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


GENESEE VALLEY LEGAL AID, INC., GENESEO (JEANNIE D. MICHALSKI OF
COUNSEL), FOR DEFENDANT-APPELLANT.

GREGORY J. MCCAFFREY, DISTRICT ATTORNEY, GENESEO (JOSHUA J. TONRA OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Livingston County Court (Dennis S.
Cohen, J.), rendered June 24, 2010. The judgment convicted defendant,
upon a jury verdict, of course of sexual conduct against a child in
the first degree and incest in the third degree (two counts).

     It is hereby ORDERED that said appeal from the judgment insofar
as it imposed sentence on the conviction of two counts of incest in
the third degree is unanimously dismissed and the judgment is
affirmed.

     Memorandum: In appeal No. 1, 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]) and two
counts of incest in the third degree (§ 255.25). In appeal No. 2,
defendant appeals from a resentence involving the two counts of
incest. We note, however, that defendant raises no contention with
respect to the resentence in appeal No. 2, and we therefore dismiss
the appeal therefrom (see People v Minemier, 124 AD3d 1408, 1408).

     Contrary to defendant’s contention, he implicitly waived his
rights under People v Antommarchi (80 NY2d 247, rearg denied 81 NY2d
759) during jury selection when, after being advised by County Court
that he had the right to attend bench conferences, he chose not to do
so (see People v Flinn, 22 NY3d 599, 601, rearg denied 23 NY3d 940).
In any event, we note that the bench conference at issue resulted in a
juror being dismissed for cause. It is well settled that, “even where
a defendant has been erroneously excluded from a sidebar conference
with a prospective juror, the error is not reversible if that
potential juror has been excused for cause by the court” (People v
Maher, 89 NY2d 318, 325).
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                                                         KA 11-00808

     Defendant failed to preserve for our review his contention that
the conviction is not supported by legally sufficient evidence
inasmuch as he made only a general motion for a trial order of
dismissal rather than one specifically directed at the alleged
deficiency in the People’s proof (see People v Hawkins, 11 NY3d 484,
492; People v Gray, 86 NY2d 10, 19). In any event, defendant’s
contention lacks merit (see generally People v Bleakley, 69 NY2d 490,
495). In addition, viewing the evidence in light of the elements of
the crimes as charged to the jury (see People v Danielson, 9 NY3d 342,
349), we conclude that the verdict is not against the weight of the
evidence (see generally Bleakley, 69 NY2d at 495). Defendant’s
contention that the evidence before the grand jury was legally
insufficient with respect to counts two and three of the indictment
“is not reviewable upon an appeal from an ensuing judgment of
conviction based upon legally sufficient trial evidence” (CPL 210.30
[6]; see People v Lee, 56 AD3d 1250, 1251, lv denied 12 NY3d 818).

     We reject defendant’s further contention that his written
statement given to the police should have been suppressed because he
allegedly has minimal reading skills and the statement was not read to
him by the police. The court was free to credit the testimony of the
police officers to the contrary (see People v Daley, 207 AD2d 1000,
1000-1001, lv denied 84 NY2d 1010), and the record establishes that
defendant was able to read the statement that he gave to the police
(see People v Fontanez, 278 AD2d 933, 934, lv denied 96 NY2d 862).

     Defendant contends that the court abused its discretion in
denying his application to cross-examine the victim about two alleged
prior false accusations of misconduct made against others. We
conclude that the victim’s prior allegation of verbal harassment
perpetrated against her by another person, even if false, “fails to
suggest a pattern casting substantial doubt on the validity of the
present charges” or to “indicate a significant probative relation to
such charges” (People v Blackman, 90 AD3d 1304, 1310, lv denied 19
NY3d 971 [internal quotation marks omitted]). With respect to the
complaint the victim made to the police against another person for
allegedly calling her names in a department store, we conclude that
defendant was attempting to attack the victim’s credibility with a
specific instance of alleged untruthfulness—a tactic that is per se
improper (see People v Arroyo, 37 AD3d 301, 301-302, lv denied 9 NY3d
839). Nor was the victim’s complaint to the police shown to be an act
of misconduct affecting her credibility (see People v Jones, 115 AD2d
302, 302-303). We thus conclude that the court did not abuse its
discretion in denying defendant’s application.

     Defendant failed to preserve for our review his contention that
the court erred in admitting the testimony of the People’s expert on
child sexual abuse accommodation syndrome (see People v Englert, 130
AD3d 1532, 1533, lv denied 26 NY3d 967). In any event, that
contention is without merit. It is well settled that such testimony
is admissible to explain the behavior of child sex abuse victims as
long as it is general in nature and does not constitute an opinion
that a particular alleged victim is credible or that the charged
crimes in fact occurred (see People v Williams, 20 NY3d 579, 583-584;
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                                                         KA 11-00808

People v Gayden, 107 AD3d 1428, 1428-1429, lv denied 22 NY3d 1138).
We have reviewed defendant’s claims of ineffective assistance of
counsel and conclude that they are without merit (see generally People
v Caban, 5 NY3d 143, 152; People v Baldi, 54 NY2d 137, 147).
Defendant failed to preserve for our review his contention that he was
denied a fair trial by prosecutorial misconduct on summation (see CPL
470.05 [2]). In any event, we conclude that his contention lacks
merit (see generally People v Halm, 81 NY2d 819, 821).

     We have reviewed defendant’s remaining contentions and conclude
that they are without merit.




Entered:   April 29, 2016                       Frances E. Cafarell
                                                Clerk of the Court
