PEOPLE v. POMALES (2008)

Appeal from a judgment of the County Court of Broome County (Smith, J.), rendered January 12, 2007, upon a verdict convicting defendant of the crimes of rape in the second degree, sexual abuse in the second degree and endangering the welfare of a child (two counts).

Following a jury trial, defendant was convicted of rape in the second degree, sexual abuse in the second degree and two counts of endangering the welfare of a child stemming from the then 39-year-old defendant's ongoing sexual contact with his then 13 and 14-year-old stepdaughters.   He was sentenced as a second felony offender to a prison term of 3 1/212 to 7 years for the rape conviction together with three concurrent one-year jail terms on the remaining convictions.

 Initially, defendant contends that the verdict is against the weight of the evidence.   With reference to the conviction of rape in the second degree (see Penal Law § 130.30[1] ), the victim testified that in October 2005 when she was 14 years old, defendant ordered her to lay on the couch and he proceeded to remove her pants and underwear.   Defendant then penetrated her vagina with his penis.   Although defendant challenges the veracity of this testimony given the victim's later recantation, the People presented expert testimony that it is not uncommon for sexually abused children to delay in reporting such incidents or recant after doing so.   Moreover, this victim indicated that defendant threatened that she would not walk again if she said anything.   Turning to the charge of sexual abuse in the second degree (see Penal Law § 130.60[2] ), the 13-year-old victim testified that from June 2005 until March 2006, defendant would often kiss her breasts and touch her vagina, inserting his fingers in her vagina on three occasions.   Viewing the evidence in a neutral light and weighing the probative force of the conflicting testimony and the relative strength of any conflicting inferences which may be drawn, as well as giving due deference to the jury's credibility assessments, we conclude that the verdicts are not against the weight of the evidence (see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987];  People v. Colvin, 37 A.D.3d 856, 857, 828 N.Y.S.2d 716 [2007];  People v. Frary, 29 A.D.3d 1223, 1225, 815 N.Y.S.2d 334 [2006], lv. denied 7 N.Y.3d 788, 821 N.Y.S.2d 818, 854 N.E.2d 1282 [2006] ).

Additionally, we find no merit to defendant's contention that, given the adolescent age of the victims, County Court erred in permitting expert testimony regarding child sexual abuse accommodation syndrome (see e.g. People v. Higgins, 12 A.D.3d 775, 779, 784 N.Y.S.2d 232 [2004], lv. denied 4 N.Y.3d 764, 792 N.Y.S.2d 7, 825 N.E.2d 139 [2005];  People v. Kukon, 275 A.D.2d 478, 479, 711 N.Y.S.2d 870 [2000], lv. denied 95 N.Y.2d 936, 721 N.Y.S.2d 612, 744 N.E.2d 148 [2000] ).   Furthermore, the clinical social worker, who had never met the victims or reviewed any information pertaining to this case, appropriately testified about the general underlying theory of such syndrome “to explain a victim's behavior that jurors might otherwise misunderstand or perceive as unusual, such as a child's failure to promptly report abuse” (People v. Pereau, 45 A.D.3d 978, 980, 845 N.Y.S.2d 536 [2007];  see People v. Carroll, 95 N.Y.2d 375, 387, 718 N.Y.S.2d 10, 740 N.E.2d 1084 [2000];  People v. Weber, 25 A.D.3d 919, 923, 807 N.Y.S.2d 222 [2006], lv. denied 6 N.Y.3d 839, 814 N.Y.S.2d 88, 847 N.E.2d 385 [2006] ).

 We are also unpersuaded by defendant's argument that County Court, while precluding reference to various other convictions, abused its discretion in permitting the People, in the event defendant testified, to cross-examine him concerning, among other things, three convictions for aggravated unlicensed operation of a motor vehicle.   Despite defendant's characterization of the offenses as traffic violations, two of the convictions were, in fact, felonies and one was a misdemeanor (see Vehicle and Traffic Law § 511[2][b];  [3][b] ).  Moreover, a review of the Sandoval hearing establishes that the court appropriately weighed the probative value of such evidence against the risk of unfair prejudice to defendant in concluding that such convictions demonstrated defendant's willingness to place his own self-interest above society and, therefore, was probative of his credibility (see People v. Sandoval, 34 N.Y.2d 371, 375-377, 357 N.Y.S.2d 849, 314 N.E.2d 413 [1974];  People v. Boodrow, 42 A.D.3d 582, 584-585, 841 N.Y.S.2d 384 [2007];  People v. Johnson, 24 A.D.3d 803, 804-805, 806 N.Y.S.2d 251 [2005] ).

Finally, defendant's challenge that County Court's Allen charge was coercive was not preserved for our review by an objection at trial (see CPL 470.05[2];  People v. Frary, 29 A.D.3d at 1225-1226, 815 N.Y.S.2d 334).   Were we to consider the issue, we would find that the Allen charge as a whole was proper (see People v. Alvarez, 86 N.Y.2d 761, 763, 631 N.Y.S.2d 130, 655 N.E.2d 171 [1995] ).

ORDERED that the judgment is affirmed.

CARDONA, P.J.

PETERS, CARPINELLO, ROSE and MALONE JR., JJ., concur.