THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v ELWOOD J. ADAMS, JR., Appellant.
Supreme Court, Appellate Division, Third Department, New York
January 21, 2016
24 NYS3d 430
Clark, J. Appeal from a judgment of the County Court of Franklin County (Catena, J.), rendered June 7, 2013, upon a verdict convicting defendant of the crime of course of sexual conduct against a child in the first degree (two counts).
In October 2012, defendant, who was born in 1972, was charged in an indictment with two counts of course of sexual
Initially, defendant claims that the verdict was against the weight of the evidence pointing to, among other things, a lack of corroboration of the victims’ testimony, which, according to him, was also contradictory. While a different verdict would not have been unreasonable here, upon our independent review and weighing of the conflicting testimony in a neutral light and deferring to the jury‘s determination to credit the victims’ accounts, we cannot agree that the jury failed to give the evidence its deserving weight (see People v Danielson, 9 NY3d 342, 348 [2007]; People v Olson, 110 AD3d 1373, 1374 [2013], lv denied 23 NY3d 1023 [2014]; People v Fernandez, 106 AD3d 1281, 1282-1283 [2013]). Victim A testified that, in September 2005, when she was in the sixth grade, defendant told her that he wanted to teach her about sex and began by exposing her to pornography. He then progressed from groping her to penetrating her vagina with a sexual device and his fingers, performing oral sex on her, and forcing her to touch his penis with her hand. According to victim A, those instances of sexual abuse occurred often and in a variety of locations and took place while her mother was at work and her siblings were either outside of the residence or were otherwise busied. According to victim A, she did not tell anyone about the abuse while it was taking place because she was afraid and defendant had told her that, if she disclosed their sexual interaction, the other children would grow up without a father figure and the family would fall apart and, moreover, no one would believe her.
Victim B, victim A‘s younger sister, testified that she was between 9 and 10 years old in September 2005, when defendant began sexually abusing her after having found out that her mother had told her about sex. According to victim B, defendant stated that he wanted to teach her more about sex and show her “how things would feel.” Defendant‘s abuse of victim B also progressed over time and involved grabbing her, touching her, performing oral sex on her, forcing her to perform oral
“While there were discrepancies in some of the details, they were fully explored and highlighted for the jury, and it is ‘not uncommon for young children to be uncertain and even inconsistent in their trial testimony‘” (People v Fernandez, 106 AD3d at 1283-1284, quoting People v Raymo, 19 AD3d 727, 728 [2005], lv denied 5 NY3d 793 [2005]). Moreover, despite any discrepancies, we feel it important to note that the children remained resolute that the alleged sexual conduct had occurred, a fact that was obviously credited by the jury. Furthermore, the expert testimony of a clinical psychologist, Don Lewittes, offered by the People, aided the jury‘s understanding of the reasons that children delay disclosure, particularly when sexual abuse occurs in family settings.
Defendant testified, denying that any sexual contact of any nature had occurred and offering explanations for why the victims would be motivated to fabricate the allegations against him. Defendant did, however, admit to telling the victims about ejaculation. He also conceded telling the victims that sex was the greatest thing they would ever feel and that it would hurt at first but, if they used a “[sex] toy,” it might make it easier for them to have intercourse when they turn 18. He also acknowledged that he “may have” told victim A that he would go to jail when she accused him of sexually molesting her. Additionally, defendant‘s statement to the police—which was properly admitted into evidence at trial—contained similar explanations of conduct whereby defendant claimed to have simply been offering advice to the victims by, for example, instructing them to wash sexual devices before use. Under these circumstances, we find no basis to conclude that the jury‘s determination to credit the victims’ accounts is against the weight of the evidence (see People v Bleakley, 69 NY2d 490, 494-495 [1987]; People v Raymo, 19 AD3d at 728).
Nor do we find merit in defendant‘s contention that he was denied the effective assistance of counsel. In this regard, we are mindful “to avoid both confusing true ineffectiveness with mere losing tactics and according undue significance to retrospective analysis” (People v Baldi, 54 NY2d 137, 146 [1981]; see People v Stultz, 2 NY3d 277, 283 [2004]), and we
Initially, counsel was not ineffective for failing to object either to the expert testimony or to the People‘s related comments on summation. It is well settled that an expert witness may testify about intra-familial child and adolescent child sexual abuse syndrome, child sexual abuse accommodation syndrome or other types of conditions associated with victims of sex abuse (see People v Williams, 20 NY3d 579, 584 [2013]), so long as he or she does not draw any comparison to the facts of the case (see People v Spicola, 16 NY3d 441, 465 [2011], cert denied 565 US —, 132 S Ct 400 [2011]; People v Taylor, 75 NY2d 277, 293 [1990]), as was the case here. Although, as noted by defendant, the expert‘s testimony supported the victims’ assertions, it does not follow that Lewittes improperly bolstered their testimony or drew a comparison between child sexual abuse syndrome and the facts of this case, particularly in light of defense counsel‘s cross-examination of the victims and defendant‘s own testimony that tended to suggest, among other things, that the victims’ actions were inconsistent with having been sexually abused (see People v Spicola, 16 NY3d at 465-466). For the same reasons, the People‘s comments on summation referencing the expert‘s testimony “constituted fair comment on the evidence” (People v Jabaut, 111 AD3d 1140, 1146 [2013], lv denied 22 NY3d 1139 [2014]).
Next, inasmuch as defendant testified to his continuing visitation with his children, we find no error in defense counsel‘s failure to object to the People‘s further inquiry into whether the visitation was supervised (see generally People v Wiltshire, 96 AD3d 1227, 1229 [2012], lv denied 22 NY3d 1204 [2014]). Further, because defendant‘s written statement did not involve prior bad acts or uncharged crimes, we find no error in counsel‘s failure to make a Ventimiglia motion to preclude its use or his failure to make a motion in limine to redact it. Viewing counsel‘s opening and closing statements as a whole, we find that counsel did not impermissibly assume the burden of proof. Moreover, the record reveals that, throughout the trial, the jury was repeatedly told and reminded by County Court that the burden never shifts and that defendant had no obligation to offer any proof in defense. Additionally, in his closing argument, defense counsel stated to the jury that the court would instruct it that, before it can return a guilty verdict, it must conclude that defendant‘s guilt was
We also find no merit to defendant‘s argument that his sentence, which is well within the statutorily permissible range (see
Defendant‘s contention that he was deprived of a fair trial because of prosecutorial misconduct was not properly preserved for our review. Defendant‘s remaining contentions, to the extent not specifically addressed herein, are without merit.
Peters, P.J., McCarthy, Egan Jr. and Devine, JJ., concur.
Ordered that the judgment is affirmed.