THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. APPEAL NO (2010)

MEMORANDUM AND ORDER

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

Memorandum:  In appeal No. 1, defendant appeals from a judgment convicting him following a jury trial of, inter alia, four counts of rape in the first degree (Penal Law § 130.35[1] ) and, in appeal No. 2, he appeals from an order denying his pro se motion pursuant to CPL 440.10 to vacate that judgment.   We granted leave to appeal from the order in appeal No. 2, and we now affirm both the judgment and order.

We reject defendant's contention that a new trial is warranted because the People failed to disclose Brady material in a timely manner.   The two documents in question contained prior inconsistent statements of the complainant concerning the dates and locations of the purported rapes, and they impeached the credibility of a prosecution witness whose testimony was determinative of guilt or innocence.   Thus, the documents in fact constituted exculpatory evidence subject to disclosure under Brady (see People v. Baxley, 84 N.Y.2d 208, 213, rearg dismissed 86 N.Y.2d 886;  People v. Harris, 35 AD3d 1197).   We conclude, however, that defendant's constitutional right to a fair trial was not violated because the documents were disclosed to defendant at a time when he had a meaningful opportunity to use them (see People v. Cortijo, 70 N.Y.2d 868, 870;  People v. Wynn, 55 AD3d 1378, 1379, lv denied 11 NY3d 901).

Contrary to defendant's further contention, Supreme Court properly refused to admit in evidence portions of a police report allegedly containing a prior inconsistent statement of the complainant, inasmuch as defendant failed to lay a proper foundation for the admission of that report (see People v. Duncan, 46 N.Y.2d 74, 80-81, rearg. denied 46 N.Y.2d 940, cert denied 442 U.S. 910, rearg dismissed 56 N.Y.2d 646;  People v. Laurey, 24 AD3d 1107, 1109, lv denied 6 NY3d 815).   We further conclude that the court properly refused to admit in evidence certain portions of a medical report that also purportedly contained a prior inconsistent statement of the complainant.   “Although defendant claims [that] he was not offering this information for its truth, but [instead was offering it] to show [that the complainant made the statement], it contained multiple layers of hearsay, and depended, for its relevancy, on at least some level being true” (People v. Alvarez, 44 AD3d 562, 564, lv denied 9 NY3d 1030).

We reject defendant's contention that the court erred in allowing a social worker to testify as a rape trauma expert.  “The qualification of a witness to testify as an expert rests in the discretion of the court, and its determination will not be disturbed in the absence of serious mistake, an error of law or an abuse of discretion” (People v. Visser, 212 A.D.2d 1009;  see People v. Page, 225 A.D.2d 831, 833, lv denied 88 N.Y.2d 883).   Through her testimony, the social worker established that her “extensive training and experience rendered her qualified to provide such [testimony]” (People v. Lewis, 16 AD3d 173, 173, lv denied 4 NY3d 888;  see People v. Bassett, 55 AD3d 1434, 1436, lv denied 11 NY3d 922).   In any event, “ ‘[p]ractical experience may properly substitute for academic training in determining whether an individual has acquired the training necessary to be qualified as an expert’ “ (People v. Paun, 269 A.D.2d 546, lv denied 95 N.Y.2d 801).

Finally, viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson, 9 NY3d 342, 349), we conclude that the verdict convicting defendant of those crimes is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495), and we further conclude that defendant was afforded meaningful representation (see generally People v. Baldi, 54 N.Y.2d 137, 147).

Patricia L. Morgan

Clerk of the Court