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

737
KA 12-02387
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, CARNI, AND LINDLEY, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                                MEMORANDUM AND ORDER

DAVID LEMERY, DEFENDANT-APPELLANT.


BRUCE R. BRYAN, SYRACUSE, FOR DEFENDANT-APPELLANT.

SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Oneida County Court (Michael L.
Dwyer, J.), rendered July 11, 2012. The judgment convicted defendant,
upon a jury verdict, of course of sexual conduct against a child in
the second 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
second degree (Penal Law § 130.80 [1] [a]). Contrary to defendant’s
contention, County Court properly exercised its discretion in
precluding defendant from introducing expert testimony with respect to
whether defendant, as the result of chemotherapy treatments, had a
diminished mental capacity that prevented him from understanding what
he was saying in taped conversations he had with the victim that were
inculpatory in nature (see People v Covington, 298 AD2d 930, 930, lv
denied 99 NY2d 557). “As a general rule, the admissibility and limits
of expert testimony lie primarily in the sound discretion of the trial
court” (People v Lee, 96 NY2d 157, 162; see People v Williams, 97 NY2d
735, 736; People v Cronin, 60 NY2d 430, 433). Under the circumstances
of this case, we conclude that evaluating defendant’s recorded
conversations with the victim was “within the ken of the typical
juror” (Cronin, 60 NY2d at 433; see Covington, 298 AD2d at 930).
Additionally, the proposed expert was unable to testify to a
reasonable degree of medical certainty that chemotherapy treatments
caused defendant’s purported deficits (see generally People v
Allweiss, 48 NY2d 40, 50).

     Contrary to defendant’s further contention, we conclude that the
court properly prohibited defendant from cross-examining the victim
with respect to her prior juvenile adjudication. It is “impermissible
to use a youthful offender or juvenile delinquency adjudication as an
                                 -2-                          737
                                                        KA 12-02387

impeachment weapon, because these adjudications are not convictions of
a crime” (People v Gray, 84 NY2d 709, 712 [internal quotation marks
omitted]). The extent to which a party may use the “ ‘illegal or
immoral acts underlying such adjudications’ ” to impeach the
credibility of a witness is a matter that is generally left to the
discretion of the court (id.; see generally People v Sandoval, 34 NY2d
371, 375). Here, the court properly exercised its discretion in
precluding cross-examination with respect to the prior bad acts
underlying the victim’s juvenile adjudication inasmuch as they did not
reflect on her credibility (cf. People v Bell, 265 AD2d 813, 814, lv
denied 94 NY2d 916; see generally Sandoval, 34 NY2d at 376).

     Additionally, 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 conclude that the verdict is not against the weight of the
evidence (see generally People v Bleakley, 69 NY2d 490, 495).
Contrary to defendant’s contention, the victim’s testimony was not
incredible as a matter of law, and we afford “ ‘deference to the
jury’s superior ability to evaluate the credibility of the People’s
witnesses’ ” (People v Baker, 30 AD3d 1102, 1103, lv denied 7 NY3d
846). Finally, the sentence is not unduly harsh or severe; the three-
year determinate sentence of incarceration is at the lower end of the
legal sentencing range and thus indicates that the sentencing court
considered defendant’s mitigating circumstances (Penal Law §§ 70.80
[4] [a] [iii]; 130.80).




Entered:   June 14, 2013                       Frances E. Cafarell
                                               Clerk of the Court
