PEOPLE v. KANANI

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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Behrooz KANANI, Defendant-Appellant.

Decided: May 16, 2000

WILLIAMS, J.P., LERNER, RUBIN, SAXE and BUCKLEY, JJ. Patrick J. Hynes, for Respondent. Rosemary Herbert, for Defendant-Appellant.

Judgment, Supreme Court, New York County (Antonio Brandveen, J.), rendered March 30, 1998, convicting defendant, after a jury trial, of 12 counts of sodomy in the first degree, and sentencing him to 12 consecutive terms of 8 1/313 to 25 years, unanimously affirmed.

 The court properly exercised its discretion in precluding defendant's expert from offering testimony on the susceptibility of young children to suggestion.   The court conducted a thorough Frye hearing (Frye v. United States, 293 F. 1013) and received submissions from the People establishing that the expert's proffered theories were highly controversial and had been rejected by other courts and experts.   The record supports the court's finding that defendant failed to meet his Frye burden of establishing the general scientific acceptance of the expert's theories.   The court also properly concluded that this subject was within the knowledge of the jurors (see, People v. Washington, 238 A.D.2d 263, 657 N.Y.S.2d 24, lv. denied 90 N.Y.2d 944, 664 N.Y.S.2d 762, 687 N.E.2d 659).   In any event, defendant was afforded ample scope to attack any deficiencies in the memory of each of the child victims and the effects of any suggestibility.   To the extent that defendant is raising a constitutional claim, such claim is unpreserved and we decline to review it in the interest of justice.

 The court properly exercised its discretion in admitting various evidence characterized by defendant as implicating him in uncharged crimes.   In each instance, the evidence was properly admitted for the purpose of explaining or refuting matters raised on cross-examination (see, People v. McIver, 245 A.D.2d 180, 666 N.Y.S.2d 183, lv. denied 91 N.Y.2d 1010, 676 N.Y.S.2d 138, 698 N.E.2d 967), and was more probative than prejudicial.

 The court properly admitted a prior consistent statement to rehabilitate one of the victims, because it “preceded significant events which defense counsel contended had influenced [the victim] to fabricate [her] trial testimony” (People v. McClean, 69 N.Y.2d 426, 430, 515 N.Y.S.2d 428, 508 N.E.2d 140).   In order to be admissible, the statement was not required to predate all possible motives to falsify (People v. Baker, 23 N.Y.2d 307, 322-323, 296 N.Y.S.2d 745, 244 N.E.2d 232).   The court also properly admitted portions of interviews that clarified other portions of the same interviews already elicited on cross-examination (see, People v. Torre, 42 N.Y.2d 1036, 1037, 399 N.Y.S.2d 203, 369 N.E.2d 759).

 We perceive no abuse in sentencing discretion.   Defendant's claim that he received a vindictive sentence upon retrial after this Court's reversal of his earlier conviction in this case (People v. Kanani, 226 A.D.2d 226, 641 N.Y.S.2d 26, lv. denied 88 N.Y.2d 967, 647 N.Y.S.2d 721, 670 N.E.2d 1353) is unpreserved and we decline to review it in the interest of justice.   Were we to review this claim, we would find that, in light of the deeming provisions of Penal Law § 70.30[1](e)(vi), defendant's present sentence is no more severe than the sentence he received after his first trial.

MEMORANDUM DECISION.