People v. Herington

Oct 1, 2004
Versions:11 A.D.3d 931
782 N.Y.S.2d 214
2004 N.Y. App. Div. LEXIS 11267

Appeal from a judgment of the Livingston County Court (Gerard J. Alonzo, Jr., J.), rendered May 8, 2003. The judgment convicted defendant, upon a jury verdict, of sodomy in the second degree (eight counts).

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him following a jury trial of eight counts of sodomy in the second degree (Penal Law former § 130.45 [1]). Contrary to defendant’s contention, County Court properly admitted expert testimony concerning child sexual abuse accommodation syndrome for the purpose of explaining why a child might not immediately report an incident of abuse (see People v Carroll, 95 NY2d 375, 387 [2000]). Also contrary to defendant’s contention, “a Frye hearing was unnecessary because the expert[ ] testimony did not involve novel scientific evidence” (People v Middlebrooks, 300 AD2d 1142, 1143 [2002], lv denied 99 NY2d 630 [2003]; see generally People v Gillard, 7 AD3d 540 [2004]; People v Doherty, 305 AD2d 867 [2003], lv denied 100 NY2d 580 [2003]; People v Miles, 294 AD2d 930 [2002], lv denied 98 NY2d 678 [2002]). Furthermore, we conclude that the expert testimony was properly admitted during the People’s case-in-chief and prior to the testimony of the complainant in order “to set the stage before [she] testifie[d]” (People v Parks, 41 NY2d 36, 49 [1976]).

Defendant’s challenge to the legal sufficiency of the evidence *932is not preserved for our review (see People v Gray, 86 NY2d 10, 19 [1995]). Contrary to defendant’s further contentions, the verdict is not against the weight of the evidence (see People v Bleakley, 69 NY2d 490, 495 [1987]) and the sentence is not unduly harsh or severe. We have reviewed defendant’s remaining contention and conclude that it is without merit. Present— Pigott, Jr., P.J., Gorski, Martoche and Hayes, JJ.