People v. Kattau

• Decision Date: 17 March 2021
• Docket Number: 2017–03794,Ind. No. 504/16
• Citation: 140 N.Y.S.3d 742 (Mem),192 A.D.3d 910
• Parties: The PEOPLE, etc., respondent, v. Robert V. KATTAU, appellant.
• Court: New York Supreme Court — Appellate Division

192 A.D.3d 910
140 N.Y.S.3d 742 (Mem)

The PEOPLE, etc., respondent,
v.
Robert V. KATTAU, appellant.

2017–03794
Ind. No. 504/16

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

Argued—February 9, 2021
March 17, 2021

Thomas E. Scott, Amityville, NY, for appellant.

Timothy D. Sini, District Attorney, Riverhead, N.Y. (Nicole L. Gallo of counsel), for respondent.

MARK C. DILLON, J.P., SYLVIA O. HINDS–RADIX, HECTOR D. LASALLE, BETSY BARROS, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Suffolk County (Mark D. Cohen, J.), rendered March 16, 2017, convicting him of course of sexual conduct against a child in the first degree and endangering the welfare of a child, upon a jury verdict, and imposing sentence. The appeal from the judgment brings up for review the denial, after a hearing (Barbara Kahn, J.), of that branch of the defendant's omnibus motion which was to suppress certain statements he made to law enforcement officials.

ORDERED that the judgment is affirmed.

The defendant allegedly began sexually abusing the complainant in 2012, when she was eight years old, and continued up until early 2016 when the complainant disclosed the abuse to her classmate. The police took a statement from the complainant and, thereafter, conducted a controlled phone call with the complainant and the

140 N.Y.S.3d 743

defendant. Upon his arrest, the defendant waived his Miranda rights (see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 ) and agreed to speak with the police. After initially denying the allegations, the defendant gave incriminating oral and written statements, claiming that the complainant had initiated the sexual contact. The defendant also handwrote a letter addressed to the complainant. At trial, the complainant testified, as did a nurse practitioner who physically examined the complainant, and the People played an audiotape of the controlled call, which, due to a technical malfunction, had failed to audibly record the complainant's side of the call, with one exception.

The defendant failed to preserve for appellate review his contention that his statements to law enforcement officials should have been suppressed on the ground that the People failed to demonstrate that the police had probable cause to arrest him (see CPL 470.05[2] ; People v. Rodriguez, 188 A.D.2d 564, 564, 591 N.Y.S.2d 460 ; People v. Murray, 212 A.D.2d 738, 622 N.Y.S.2d 784 ). In any event, the contention is without merit (see People v. Mendoza, 49 A.D.3d 559, 560, 853 N.Y.S.2d 364 ; People v. Jansson, 305 A.D.2d 942, 943, 760 N.Y.S.2d 259 ).

The defendant's contention that he was deprived of a fair trial as a result of impermissible hearsay testimony elicited from the complainant's classmate, a police detective, and the nurse practitioner is unpreserved for appellate review (see CPL 470.05[2] ). In any event, the classmate's challenged testimony was properly admitted under the prompt outcry exception to the hearsay rule, and the challenged testimony of the detective was admissible as necessary background information to demonstrate what ultimately led to the defendant's arrest (see People v. Mandes, 168 A.D.3d 764, 91 N.Y.S.3d 194 ). Contrary to the defendant's contention, the challenged testimony of the nurse practitioner was "germane to diagnosis and treatment" and, therefore, "properly admitted as an exception to the hearsay rule" ( People v. Spicola, 16 N.Y.3d 441, 451, 922 N.Y.S.2d 846, 947 N.E.2d 620 ).

The defendant failed to preserve for appellate review his contention that he was deprived of a fair trial because the detective opined that the complainant was credible (see CPL 470.05[2] ). In any event, while this type of testimony was improper (see People v. Guay, 18 N.Y.3d 16, 24, 935 N.Y.S.2d 567, 959 N.E.2d 504 ; People v. Allen, 222 A.D.2d 441, 442, 635 N.Y.S.2d 40 ), the error was harmless because there was overwhelming evidence of the defendant's guilt and no significant probability that the jury would have acquitted the defendant if the detective had not provided the opinion testimony (see People v. Guay, 18...