PEOPLE v. SPICOLA (2009)

 Defendant appeals from a judgment convicting him upon a jury verdict of six counts of sodomy in the first degree (Penal Law former § 130.50[3] ), three counts of sexual abuse in the first degree (§ 130.65[3] ) and one count of endangering the welfare of a child (§ 260.10[1] ).   We reject defendant's contentions that County Court erred in admitting expert testimony concerning child sex abuse accommodation syndrome (see People v. Carroll, 95 N.Y.2d 375, 387, 718 N.Y.S.2d 10, 740 N.E.2d 1084;  People v. Miles, 294 A.D.2d 930, 741 N.Y.S.2d 774, lv. denied 98 N.Y.2d 678, 746 N.Y.S.2d 467, 774 N.E.2d 232), as well as statements made by the victim concerning the incidents at issue to a nurse practitioner that were relevant to the victim's diagnosis and treatment (see People v. White, 306 A.D.2d 886, 760 N.Y.S.2d 916, lv. denied 100 N.Y.2d 625, 767 N.Y.S.2d 409, 799 N.E.2d 632).   Contrary to defendant's further contention, “[t]he court properly precluded defendant from introducing evidence concerning his reputation for truth and veracity, because that evidence did not relate to a trait involved in the charges of ․ sodomy, sexual abuse or endangering the welfare of a child” (People v. Fanning, 209 A.D.2d 978, 978, 620 N.Y.S.2d 23, lv. denied 85 N.Y.2d 908, 627 N.Y.S.2d 331, 650 N.E.2d 1333;  see People v. Renner, 269 A.D.2d 843, 844, 703 N.Y.S.2d 772).

 Defendant failed to preserve for our review his challenge to the court's preliminary jury instructions (see CPL 470.05[2];  People v. Giddens, 202 A.D.2d 976, 609 N.Y.S.2d 736, lv. denied 83 N.Y.2d 871, 613 N.Y.S.2d 132, 635 N.E.2d 301), and we decline to exercise our power to review that challenge as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).   Considering all of the relevant circumstances, we conclude that the time frames set forth in the indictment were sufficiently specific to enable defendant to prepare a defense (see People v. Furlong, 4 A.D.3d 839, 840-841, 772 N.Y.S.2d 779, lv. denied 2 N.Y.3d 739, 778 N.Y.S.2d 465, 810 N.E.2d 918;  see generally People v. Watt, 81 N.Y.2d 772, 774-775, 593 N.Y.S.2d 782, 609 N.E.2d 135).   We reject the contention of defendant that defense counsel was ineffective in failing to preserve certain contentions for our review.  “ ‘Deprivation of appellate review ․ does not per se establish ineffective assistance of counsel’ ․ but, rather, a defendant must also show that his or her contention would be meritorious on appellate review,” and defendant failed to make that showing (People v. Bassett, 55 A.D.3d 1434, 1438, 866 N.Y.S.2d 473, lv. denied 11 N.Y.3d 922, 874 N.Y.S.2d 7, 902 N.E.2d 441).   Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), and according great deference to the jury's resolution of credibility issues, we conclude that the verdict is not contrary to the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   The general motion by defendant for a trial order of dismissal at the close of proof did not preserve for our review his challenge to the legal sufficiency of the evidence (see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919).   Finally, the sentence is not unduly harsh or severe.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

MEMORANDUM: