PEOPLE v. ROSARIO (2012)

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Hollie, J.), rendered November 13, 2008, convicting him of course of sexual conduct against a child in the first degree (two counts), course of sexual conduct against a child in the second degree, endangering the welfare of a child, and bail jumping in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant was charged with sexually abusing his cousin, who was eight years younger than the defendant, over the course of approximately six years. The evidence admitted at trial included the defendant's written and videotaped statements, wherein he described five incidents of sexual conduct with the victim. After a jury trial, the defendant was convicted of course of sexual conduct against a child in the first degree (two counts), course of sexual conduct against a child in the second degree, endangering the welfare of a child, and bail jumping in the second degree.

Contrary to the defendant's contention, the Supreme Court, after a Frye hearing (see Frye v. United States, 293 F. 1013), providently exercised its discretion in precluding expert testimony on the issue of false confessions and the use of undue influence in police interrogations because the proposed testimony was not relevant to the specific circumstances of this case (see People v. Bedessie, 19 N.Y.3d 147, 947 N.Y.S.2d 357, 970 N.E.2d 380; see generally People v. LeGrand, 8 N.Y.3d 449, 452, 835 N.Y.S.2d 523, 867 N.E.2d 374; People v. Lee, 96 N.Y.2d 157, 162, 726 N.Y.S.2d 361, 750 N.E.2d 63; People v. Allen, 53 A.D.3d 582, 584, 861 N.Y.S.2d 775).

Moreover, there is no merit to the defendant's contentions that the testimony of the victim's cousin, to whom the victim first reported the abuse approximately two years after the abuse ended, and the victim's uncle, who then revealed the victim's claims to the victim's immediate family members, including a New York City police officer, constituted improper bolstering. Although these family members had no firsthand knowledge of the events about which the victim would testify, the nonspecific testimony about the child-victim's reports of sexual abuse did not constitute improper bolstering, as it was offered for the relevant, nonhearsay purpose of explaining the investigative process and completing the narrative of events leading to the defendant's arrest more than two years after the abuse occurred (see People v. Terry, 85 A.D.3d 1485, 1488, 926 N.Y.S.2d 216; People v. Manning, 81 A.D.3d 1181, 1183, 917 N.Y.S.2d 721, lv. denied 18 N.Y.3d 959, 944 N.Y.S.2d 488, 967 N.E.2d 713; People v. Gregory, 78 A.D.3d 1246, 910 N.Y.S.2d 295; People v. Ragsdale, 68 A.D.3d 897, 897–898, 889 N.Y.S.2d 681). Further, the testimony was accompanied by an appropriate limiting instruction, which is presumed to have been heeded (see People v. Hayes, 17 N.Y.3d 46, 56, 926 N.Y.S.2d 382, 950 N.E.2d 118, cert. denied ––– U.S. ––––, 132 S.Ct. 844, 181 L.Ed.2d 553).

The defendant's failure to object to certain remarks made by the prosecutor during summation renders his challenge to those remarks unpreserved for appellate review (see CPL 470.05[2]; People v. Williams, 38 A.D.3d 925, 926, 833 N.Y.S.2d 160). In any event, the challenged comments were either fair comment on the evidence or responsive to arguments and theories presented in the defense summation (see People v. Galloway, 54 N.Y.2d 396, 446 N.Y.S.2d 9, 430 N.E.2d 885; People v. Ashwal, 39 N.Y.2d 105, 383 N.Y.S.2d 204, 347 N.E.2d 564; People v. Williams, 38 A.D.3d at 926, 833 N.Y.S.2d 160; cf. People v. Pagan, 2 A.D.3d 879, 880, 769 N.Y.S.2d 741).

The defendant never requested a charge regarding delayed outcry, or delayed reporting, even when the trial court specifically asked defense counsel whether there were any further charges requested. The defendant's failure to either request such a specific jury instruction or to timely object to the instructions as given renders his challenge to the trial court's instruction unpreserved for appellate review (see CPL 470.05[2]; People v. Melendez, 16 N.Y.3d 869, 870, 925 N.Y.S.2d 6, 948 N.E.2d 1290; People v. Williams, 38 A.D.3d at 926, 833 N.Y.S.2d 160). In any event, when considered as a whole, the trial court's instructions sufficiently conveyed the correct standards (see People v. Melendez, 16 N.Y.3d at 870, 925 N.Y.S.2d 6, 948 N.E.2d 1290; People v. Williams, 38 A.D.3d at 926, 833 N.Y.S.2d 160).