PEOPLE v. STAPLES (2009)

 Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, criminal sexual act in the first degree (Penal Law § 130.50[3] ) and rape in the first degree (§ 130.35 [3] ).   We reject the contention of defendant that the testimony of the People's expert concerning the initial failure of the victim to identify defendant as the perpetrator and her hesitancy to disclose the abuse constituted improper bolstering (see People v. Donk, 259 A.D.2d 1018, 688 N.Y.S.2d 333, lv. denied 93 N.Y.2d 924, 693 N.Y.S.2d 507, 715 N.E.2d 510;  People v. DeLong, 206 A.D.2d 914, 915, 615 N.Y.S.2d 168).   The expert's testimony was properly “admitted to explain behavior of a victim that might appear unusual or that jurors may not be expected to understand” (People v. Carroll, 95 N.Y.2d 375, 387, 718 N.Y.S.2d 10, 740 N.E.2d 1084).   We reject the further contention of defendant that his right of confrontation was violated when County Court allowed a pediatrician and a physician's assistant to testify concerning the results of medical tests performed in hospital laboratories inasmuch as those results were not “testimonial” (People v. Freycinet, 11 N.Y.3d 38, 41, 862 N.Y.S.2d 450, 892 N.E.2d 843;  see generally People v. Rawlins, 10 N.Y.3d 136, 158-160, 855 N.Y.S.2d 20, 884 N.E.2d 1019).   Finally, viewing the evidence in the light most favorable to the People, as we must (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we conclude that the evidence is legally sufficient to support the conviction (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).

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

MEMORANDUM: