PEOPLE v. DONK

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

PEOPLE of the State of New York, Plaintiff-Respondent, v. Robert DONK, Defendant-Appellant.

Decided: March 31, 1999

Present:  PINE, J.P., HAYES, WISNER, PIGOTT, JR., and HURLBUTT, JJ. Jeffrey Lee Taylor, Ontario County District Attorney's Office, Canandaigua, for plaintiff-respondent. Zimmerman Tyo & Sisson, Shortsville (Robert Wade Zimmerman, of counsel), for defendant-appellant. R. Michael Tantillo, Ontario County District Attorney's Office, Canandaigua.

 Defendant appeals from a judgment convicting him following a jury trial of two counts of sexual abuse in the first degree (Penal Law § 130.65[3] ) and one count of endangering the welfare of a child (Penal Law § 260.10[1] ).   Defendant's contention that County Court erred in admitting expert testimony is not preserved for our review (see, CPL 470.05[2];  People v. Avellanet, 242 A.D.2d 865, 662 N.Y.S.2d 345, lv. denied 91 N.Y.2d 868, 668 N.Y.S.2d 566, 691 N.E.2d 638;  People v. Joye, 198 A.D.2d 21, 22, 603 N.Y.S.2d 131, lv. denied 83 N.Y.2d 854, 612 N.Y.S.2d 386, 634 N.E.2d 987).   In any event, contrary to defendant's contention, the testimony of the psychologist did not bolster complainant's testimony.   The expert testimony was properly introduced to explain the hesitancy of child abuse victims to disclose the abuse (see, People v. DeLong, 206 A.D.2d 914, 915, 615 N.Y.S.2d 168;  see generally, People v. Taylor, 75 N.Y.2d 277, 292-293, 552 N.Y.S.2d 883, 552 N.E.2d 131;  People v. Hryckewicz, 221 A.D.2d 990, 634 N.Y.S.2d 297, lv. denied 88 N.Y.2d 849, 644 N.Y.S.2d 695, 667 N.E.2d 345).   Defendant also failed to preserve for our review his contention that the court erred in failing to conduct a disqualification hearing with respect to a juror who was seen speaking with relatives of complainant (see, CPL 470.05[2];  People v. Torres, 80 N.Y.2d 944, 945, 590 N.Y.S.2d 867, 605 N.E.2d 354, rearg. denied 81 N.Y.2d 784, 594 N.Y.S.2d 721, 610 N.E.2d 394).   After the court questioned complainant's relatives, defendant did not request any inquiry of the juror (see, People v. Albert, 85 N.Y.2d 851, 852, 623 N.Y.S.2d 848, 647 N.E.2d 1356;  People v. Starks, 248 A.D.2d 1003, 670 N.Y.S.2d 146, lv. denied 91 N.Y.2d 1013, 676 N.Y.S.2d 141, 698 N.E.2d 970;  People v. Gonzalez, 247 A.D.2d 328, 329, 670 N.Y.S.2d 180).   We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see, CPL 470.15[6][a] ).

 The court did not abuse its discretion in allowing the seven-year-old complainant to give sworn testimony.   The voir dire of the witness showed that she understood and appreciated the nature of the oath (see, CPL 60.20[2];  People v. Nisoff, 36 N.Y.2d 560, 566, 369 N.Y.S.2d 686, 330 N.E.2d 638).   The responses of complainant indicated that she “understood the difference between the truth and a lie, the importance of telling the truth, and that [s]he could be punished if [s]he lied in court” (People v. Velez, 222 A.D.2d 625, 626, 635 N.Y.S.2d 665, lv. denied 88 N.Y.2d 887, 645 N.Y.S.2d 462, 668 N.E.2d 433;  see, People v. Morales, 80 N.Y.2d 450, 453, 591 N.Y.S.2d 825, 606 N.E.2d 953).

 We reject the contention of defendant that he was denied effective assistance of counsel.   Defendant failed to show that defense counsel's inquiry regarding counseling that complainant received was not part of a valid trial strategy (see, People v. Rivera, 71 N.Y.2d 705, 708-709, 530 N.Y.S.2d 52, 525 N.E.2d 698).   Based on the record as a whole, we conclude that defense counsel provided meaningful representation (see, People v. Flores, 84 N.Y.2d 184, 187, 615 N.Y.S.2d 662, 639 N.E.2d 19;  People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).   Finally, the sentence is neither unduly harsh nor severe.

Judgment unanimously affirmed.

MEMORANDUM: