PEOPLE v. STAROPOLI (2008)

Appeal by the defendant from a judgment of the County Court, Rockland County (Resnick, J.), rendered August 30, 2005, convicting him of rape in the third degree (5 counts), criminal sexual act in the third degree (16 counts), sexual abuse in the third degree (17 counts), and endangering the welfare of a child, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed, and the matter is remitted to the Supreme Court, Rockland County, for further proceedings pursuant to CPL 460.50(5).

The defendant's contention that the expert's testimony concerning child sexual abuse accommodation syndrome impermissibly bolstered the testimony of the complainant is unpreserved for appellate review (see CPL 470.05[2] ).   In any event, there is no merit to the contention (see People v. Carroll, 95 N.Y.2d 375, 387, 718 N.Y.S.2d 10, 740 N.E.2d 1084;  People v. Taylor, 75 N.Y.2d 277, 288, 552 N.Y.S.2d 883, 552 N.E.2d 131).

 The defendant's contentions regarding the disqualification of two prospective jurors are without merit.   The determination that a prospective juror should be disqualified before voir dire is a matter for the court, and a defendant has no statutory or constitutional right to personally participate in discussions leading to the court's ruling (see People v. Velasco, 77 N.Y.2d 469, 473, 568 N.Y.S.2d 721, 570 N.E.2d 1070).   Here, the County Court providently exercised its discretion when, before the voir dire of two prospective jurors and before their panel was sworn to answer questions truthfully, it directed those two prospective jurors to report back to the Commissioner of Jurors because they were inappropriately dressed (see People v. Wilson, 211 A.D.2d 136, 140, 626 N.Y.S.2d 936, affd. 88 N.Y.2d 363, 645 N.Y.S.2d 759, 668 N.E.2d 879;  cf. People v. Thorpe, 223 A.D.2d 739, 740-741, 637 N.Y.S.2d 212).

The defendant's claim of ineffective assistance of counsel, to the extent that it is premised on his attorney's failure to retain and call an expert witness, involves matter dehors the record and, thus, is not properly before us on this direct appeal from the judgment (see People v. Farrier, 45 A.D.3d 603, 844 N.Y.S.2d 709;  People v. Zimmerman, 309 A.D.2d 824, 765 N.Y.S.2d 524;   People v. Carlisle, 272 A.D.2d 477, 708 N.Y.S.2d 315).   The record otherwise fails to support the defendant's claim since it demonstrates that trial counsel rendered meaningful representation to him (see People v. Benevento, 91 N.Y.2d 708, 712-713, 674 N.Y.S.2d 629, 697 N.E.2d 584).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

The defendant's remaining contention is unpreserved for appellate review and, in any event, is without merit.