PEOPLE v. GRANT (1997)

Judgment, Supreme Court, Bronx County (Frank Torres, J.), rendered March 6, 1996, convicting defendant, after a jury trial, of sexual abuse in the first degree and endangering the welfare of a child, and sentencing him, as a second felony offender, to concurrent prison terms of 3 1/212 to 7 years and 1 year, respectively, unanimously affirmed.

 The court properly precluded inquiry into alleged incidents of nonconsensual sex experienced by the complainant (CPL § 60.42[5] ).   There was no evidence that these incidents provided the complainant with knowledge of the sexual activities involved in this case, and, in any event, the complainant's knowledge of sexual matters, or lack thereof, was not at issue.   There was also a lack of proof that any of these incidents constituted false allegations (People v. Mandel, 48 N.Y.2d 952, 425 N.Y.S.2d 63, 401 N.E.2d 185, cert. denied 446 U.S. 949, 100 S.Ct. 2913, 64 L.Ed.2d 805), and the court properly exercised its discretion when it prohibited a trial within a trial of their truth or falsity (cf., People v. Robinson, 68 N.Y.2d 541, 550, 510 N.Y.S.2d 837, 503 N.E.2d 485).   The court responded appropriately to defense counsel's attempts to circumvent the court's preclusion ruling.

 Expert testimony concerning child sexual abuse syndrome was properly admitted since it was relevant and helpful to the jury's understanding of child abuse victims, a subject not within the ken of the average juror (People v. Cintron, 75 N.Y.2d 249, 267, 552 N.Y.S.2d 68, 551 N.E.2d 561).   The evidence was not offered to show that the assault took place (People v. Taylor, 75 N.Y.2d 277, 293, 552 N.Y.S.2d 883, 552 N.E.2d 131), but was relevant to explain the victim's delayed disclosure, reluctance to testify and inability to remember minor details of the incident.

 Improper arguments by the prosecutor on summation were not part of an “obdurate pattern of inflammatory remarks” (People v. Ortiz, 116 A.D.2d 531, 532, 497 N.Y.S.2d 678) and any prejudice was cured by the court's instruction addressed specifically to the improper references.   The jury is presumed to have followed the court's instruction (People v. Berg, 59 N.Y.2d 294, 299-300, 464 N.Y.S.2d 703, 451 N.E.2d 450).   The remainder of the challenged portions of the prosecutor's summation were proper responses to the defense summation.

 The challenged testimony as to events immediately preceding the incident of sexual abuse, which included defendant's request of his daughter to bring him a “reefer” in his bedroom, did not result in any prejudice to defendant and does not warrant reversal.

MEMORANDUM DECISION.