PEOPLE v. CLAS (2008)

Appeal by the defendant from a judgment of the County Court, Suffolk County (Kahn, J.), rendered June 10, 2005, convicting him of criminal sexual act in the first degree, sexual abuse in the first degree (two counts), and endangering the welfare of a child, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The defendant's contention that the testimony of the People's witness Dr. Jocelyn Brown amounted to improper bolstering of the complainant's testimony is unpreserved for appellate review (see CPL 470.05[2] ) since the defendant's objection at trial was based upon grounds different from those raised on appeal (see People v. Saladana, 208 A.D.2d 872, 617 N.Y.S.2d 836), and his general objection was insufficient to preserve the issue for appellate review (see People v. Walker, 182 A.D.2d 657, 582 N.Y.S.2d 34).

The defendant's argument regarding the testimony of the People's expert Dr. Eileen Tracey regarding child abuse accommodation syndrome is unpreserved for appellate review (see CPL 470.05[2];  People v. Naranjo, 194 A.D.2d 747, 748, 600 N.Y.S.2d 81) and, in any event, is without merit (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;  People v. Higgins, 12 A.D.3d 775, 778-779, 784 N.Y.S.2d 232).

The defendant's challenges to the testimony of the complainant's aunt and mother are also unpreserved for appellate review (see People v. Patten, 43 A.D.3d 964, 965, 841 N.Y.S.2d 359;  People v. Valentine, 48 A.D.3d 1268, 852 N.Y.S.2d 525) and, in any event, are without merit.

 The trial court properly denied the defendant's request for a missing witness charge with respect to his six-year-old son because the request, which was made after both sides had rested, was untimely (see People v. Lubrano, 43 A.D.3d 829, 844 N.Y.S.2d 319;  People v. Tilghman, 233 A.D.2d 348, 649 N.Y.S.2d 818).   In any event, the record demonstrates that the uncalled witness was equally available to both parties (see People v. Jean-Baptiste, 37 A.D.3d 852, 829 N.Y.S.2d 919;  People v. Herrera, 285 A.D.2d 613, 614, 728 N.Y.S.2d 745).

 Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that the sworn testimony of the complainant establishing the required elements of criminal sexual act in the first degree (see Penal Law §§ 130.50[3], 130.00[2][a] ) as well as sexual abuse in the first degree (see Penal Law §§ 130.65[3], 130.00[3] ), constituted legally sufficient evidence of the defendant's guilt beyond a reasonable doubt (see People v. Pryce, 41 A.D.3d 983, 984, 840 N.Y.S.2d 156;  People v. Edkin, 210 A.D.2d 808, 809-810, 621 N.Y.S.2d 395;  People v. Lashway, 187 A.D.2d 747, 749, 589 N.Y.S.2d 687;  People v. Ali, 178 A.D.2d 418, 576 N.Y.S.2d 807).   Moreover, upon the exercise of our factual review power (see CPL 470.15[5] ), we are satisfied that the verdict of guilt was not against the weight of the evidence.

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 86-88, 455 N.Y.S.2d 675).