People v. Gallow
| Decision Date | 08 March 1991 |
| Citation | 569 N.Y.S.2d 530,171 A.D.2d 1061 |
| Parties | PEOPLE of the State of New York, Respondent, v. Allen GALLOW, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Patrick Cooney, Canandaigua, for appellant.
R. Michael Tantillo by Kathleen Hanlon Pohl, Canandaigua, for respondent.
Before CALLAHAN, J.P., and DOERR, GREEN, PINE and BALIO, JJ.
Defendant was convicted of rape in the first degree, incest and endangering the welfare of a child for engaging in sexual intercourse with his 7-year-old daughter. On appeal, he contends that the evidence was legally insufficient to prove that the crimes were committed in the City of Canandaigua, as alleged in the People's bill of particulars; that the trial court erred in permitting expert testimony on the child abuse accommodation syndrome, in permitting the prosecutor to conduct the preliminary examination of the seven-year-old child victim regarding her competence to give unsworn testimony, and in conducting the examination in the presence of the jury; that defendant was denied his right to be present at material stages of the proceeding; that rejection of his application for expert witness fees deprived him of a fair trial; and that the trial court's demonstration of hostility towards defense counsel deprived defendant of a fair trial and the effective assistance of counsel.
The record fails to support defendant's claim that the court demonstrated hostility toward defense counsel during the trial. Further, defendant raised no objection to the in-chambers conferences among the court, prosecutor and defense counsel, thereby not preserving the issue for appellate review (People V. Howard, 167, A.D.2d 992, 562 N.Y.S.2d 285; People v. Dunlan, 161 A.D.2d 1114, 555 N.Y.S.2d 492; People v. Blake, 158 A.D.2d 797, 551 N.Y.S.2d 132, lo. denied 75 N.Y.S.2 964, 556 N.Y.S.2d 249, 555 N.E.2d 621). Defendant, in moving to dismiss the indictment, raised no specific contention that the evidence was legally insufficient to prove that the crime was committed in the location set forth in the bill of particulars, and thus, this issue was not preserved for our review (see, People v. Logan, 74 N.Y.2d 859, 547 N.Y.S.2d 828, 547 N.E.2d 83; People v. Colavito, 70 N.Y.2d 996, 526 N.Y.S.2d 432, 521 N.E.2d 439, aff'g 126 A.D.2d 554, 510 N.Y.S.2d 678; People v. Bynum, 70 N.Y.2d 858, 523 N.Y.S.2d 492, 518 N.E.2d 4). Also unpreserved was defendant's contention that the preliminary examination of the child was improperly conducted in the presence of the jury, and in any event, the contention has no merit (see, People v. Parks, 41 N.Y.2d 36, 390 N.Y.S.2d 848, 359 N.E.2d 358).
The trial court did not err in admitting expert testimony concerning the sexual abuse accommodation syndrome. Such testimony is admissible when the import of the victim's post-abuse conduct is beyond the ordinary understanding of the jury and the testimony is proffered to explain the victim's conduct (see, People v. Wellman, 166 A.D.2d 302, 560 N.Y.S.2d 643; People v. Karst, 166 A.D.2d 920, 560 N.Y.S.2d 577, appeal denied 76 N.Y.2d 987, 563 N.Y.S.2d 776, 565 N.E.2d 525; People v. Page, 166 A.D.2d 886, 560 N.Y.S.2d 546). In the subject case, the evidence was properly admitted to explain the child's conduct in recanting her claim that her father abused her and subsequently reasserting that claim at trial.
Defendant's remaining contentions are...
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Witness competence
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Witness competence
...nothing to preclude the court from permitting defense counsel or the prosecution to participate in that examination. People v. Gallow , 171 A.D.2d 1061, 569 N.Y.S.2d 530 (4th Dept. 1991). he subject of the inquiry is whether the child understands the nature and obligation of taking the oath......
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Witness competence
...nothing to preclude the court from permitting defense counsel or the prosecution to participate in that examination. People v. Gallow , 171 A.D.2d 1061, 569 N.Y.S.2d 530 (4th Dept. 1991). he subject of the inquiry is whether the child understands the nature and obligation of taking the oath......
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Witness competence
...nothing to preclude the court from permitting defense counsel or the prosecution to participate in that examination. People v. Gallow , 171 A.D.2d 1061, 569 N.Y.S.2d 530 (4th Dept. 1991). The subject of the inquiry is whether the child understands the nature and obligation of taking the oat......