People v. Johnson

• Decision Date: 29 September 2017
• Docket Number: 991 KA 13-00816.
• Citation: 153 A.D.3d 1606,62 N.Y.S.3d 658
• Parties: The PEOPLE of the State of New York, Respondent, v. Brandon JOHNSON, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

153 A.D.3d 1606
62 N.Y.S.3d 658

The PEOPLE of the State of New York, Respondent,
v.
Brandon JOHNSON, Defendant–Appellant.

991 KA 13-00816.

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

Sept. 29, 2017.

62 N.Y.S.3d 659

Eftihia Bourtis, Rochester, for Defendant–Appellant.

Sandra Doorley, District Attorney, Rochester (Scott Myles of Counsel), for Respondent.

PRESENT: WHALEN, P.J., PERADOTTO, LINDLEY, NEMOYER, AND CURRAN, JJ.

MEMORANDUM:

Defendant appeals from a judgment convicting him, upon a jury verdict, of rape in the first degree ( Penal Law § 130.35[1] ) and rape in the third degree (§ 130.25[3] ). We reject the contention of defendant that Supreme Court erred in admitting in evidence the medical opinion testimony of the sexual assault nurse examiner who conducted an examination of the victim. " ‘The qualification of a witness to testify as an expert rests in the discretion of the court, and its determination will not be disturbed in the absence of serious mistake, an error of law or an abuse of discretion’ " ( People v. Owens, 70 A.D.3d 1469, 1470, 894 N.Y.S.2d 651, lv. denied 14 N.Y.3d 890, 903 N.Y.S.2d 779, 929 N.E.2d 1014 ). Here, the court properly determined that the nurse examiner's testimony describing her extensive education, training, and experience established that she was qualified to render a medical opinion (see People v. Morehouse, 5 A.D.3d 925, 928–929, 774 N.Y.S.2d 100, lv. denied 3 N.Y.3d 644, 782 N.Y.S.2d 416, 816 N.E.2d 206 ). The court was not required to declare or certify on the record that the nurse examiner was an expert before permitting her to provide her medical opinion (see People v. Valentine, 48 A.D.3d 1268, 1269, 852 N.Y.S.2d 525, lv. denied 10 N.Y.3d 871, 860 N.Y.S.2d 498, 890 N.E.2d 261 ).

62 N.Y.S.3d 660

Contrary to defendant's further contention, we conclude that the victim's statement to one of her neighbors that she had been raped was properly admitted under the prompt outcry exception to the rule against hearsay. The statement was made " ‘at the first suitable opportunity,’ " within moments of the incident and without accompanying details ( People v. McDaniel, 81 N.Y.2d 10, 17, 595 N.Y.S.2d 364, 611 N.E.2d 265 ; see People v. Walek, 28 A.D.3d 1246, 1247, 812 N.Y.S.2d 915, lv. denied 7 N.Y.3d 764, 819 N.Y.S.2d 890, 853 N.E.2d 261 ; People v. Renner, 269 A.D.2d 843, 843–844, 703 N.Y.S.2d 772 ).

Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson, 9...