READ, J.
On November 16, 2006, defendant Michael Spicola was charged in a 10-count indictment with six counts of first-degree sodomy (Penal Law § 130.50 [3]), three counts of first-degree sexual abuse (Penal Law § 130.65), and one count of endangering the welfare of a child (Penal Law § 260.10) stemming from three occasions when he was accused of engaging in reciprocal oral to genital contact with a young boy. These sexual encounters were alleged to have occurred between March 1, 1999 and April 30, 1999, a 61-day period when the boy was a six-year-old first grader; June 15, 2000 and August 31, 2000, a 77-day period during which the boy turned from seven to eight years old; and September 1, 2000 to November 30, 2000, a 91-day period when the boy was an eight-year-old third grader.
At defendant's subsequent jury trial, the boy's mother, a single parent, explained that defendant, her cousin, had been "involved in [her] life" after she moved back to western New York, where she grew up; he helped her out with chores, and occasionally watched her young son. The boy was friendly with defendant's daughter and youngest stepson, who were just a few years older than he was; he visited defendant's residence and slept over in 1999 and 2000 a "[f]ew times a year," including during spring break in 1999. Defendant took the boy to sporting events, and was his soccer coach during 2004.
The mother first sensed that "something wasn't right" in early 2006, when defendant, who had a college degree in advanced accounting and was self-employed as a tax preparer, stopped by her house to drop off her tax return. Defendant approached her son and started to tickle him, which the mother did not consider to be anything other than ordinary horseplay; however, she thought her son's reactions were "weird." First, he "went ... chest down on the ground ... and tightened up and then ... walked away" from defendant and retreated to the couch next to the chair in which she was seated. When defendant sat down beside the boy and rubbed his back, he responded by curling up into "the fetal position ... and leaned away from" defendant.
The boy made this disclosure at the age of 13, seven years after the first and almost six years after the last instance of alleged molestation. Upon hearing her son's account, the mother immediately called her own mother, who was at work at the time, and the boy's father, asking them to come to her house urgently. She testified that her son sat on the living room couch and cried for a long time after he divulged his secret, and that he was "withdrawn, sad, scared" as the day wore on, and for many months thereafter. The boy's grandmother and father recalled finding him crying when they arrived; they described the mother as angry and distraught. The mother contacted the police, and a detective from the Erie County Sheriff's Department called her back later that day. The following day, she took the boy to the Child Advocacy Center (CAC) in Buffalo, where he was interviewed by a prosecutor and examined by a nurse-practitioner, who recommended counseling.
On the witness stand, the boy recounted the sexual abuse as having taken place while defendant played "knee hockey" alone with him, in the nude, in the living room of defendant's home, generally in the afternoon. In this game, the players got down on their knees and tried to shoot a ball into designated goals, using miniature hockey sticks. On cross-examination, defense counsel pressed two considerations in particular: that the boy
Defendant testified on his own behalf. He stated that the boy first slept over at his residence during Christmas vacation in 1999, not the spring of 1999, and that he next slept over, accompanied by a friend, during Christmas vacation in 2000 and the Martin Luther King holiday weekend in 2001. Defendant asserted that he was never at any time alone in his house with the boy because there were always other family members around while the boy was there. Further, the boy "beg[ged]" to stay overnight after a family reunion in the summer of 2001 because "a week or two before [he] bought [his] kids a trampoline and [the boy] was having a lot of fun playing on the trampoline." According to defendant, the next time the boy slept over was after accompanying him and his youngest stepson to a stock car race over Memorial Day weekend of 2004; and he stayed over again, with another boy, after again going to a stock car race with defendant, this time in late September 2004. Defendant testified that he took the boy to professional hockey games in November 2005 and March 2006.
In defendant's telling, "knee hockey" was a game "invented" by his three stepsons, which the children played in the living room of his house. He sometimes joined in, "[j]ust to have fun with [his] kids," and the boy played with them when he visited. Defendant flatly denied ever having played "knee hockey" alone with the boy; he flatly denied the charges in the indictment.
On cross-examination, the prosecutor brought out that defendant had omitted his several-year stint as a full-time school bus driver from the lengthy work history he gave during direct examination. Defendant admitted that he was given a directive by the school superintendent in January 2002, and resigned from his post in May 2003 by mutual agreement with the union and the school district, although he denied ignoring the
The jury convicted defendant on all counts. On August 9, 2007, the trial judge sentenced him to concurrent determinate terms of 12 years for first-degree sodomy; seven years for first-degree sexual abuse; and one year for endangering the welfare of a child. Defendant appealed on numerous grounds, including that the trial judge erred when he permitted testimony from a nurse-practitioner who examined the boy and expert testimony from a clinical social worker relating to child sexual abuse accommodation syndrome (CSAAS). On April 24, 2009, the Appellate Division affirmed (61 A.D.3d 1434 [4th Dept 2009]). A Judge of this Court granted defendant permission to appeal (14 N.Y.3d 805 [2010]), and we now affirm.
Defense counsel sought to preclude the testimony of the pediatric nurse-practitioner who examined the boy the day after he confided in his mother. He advanced several arguments: first, that the nurse "would not be in any position to give an opinion that the young man was molested or abused"; second, she found no physical evidence of sexual abuse; and third,
When the trial judge asked the prosecutor why the nurse was being called, she gave several reasons. First, she pointed out that a nurse-practitioner is, unlike a registered nurse, competent and authorized to make a medical diagnosis; she cited CPLR 4518 (business records); she asserted that jurors may question the lack of physical evidence in a sexual abuse case, and the nurse could explain that this circumstance was not inconsistent with the boy's account, which was especially important "when there [are] references by the defense ... there is no medical evidence."
The prosecutor also told the judge that she expected the nurse "to describe her actual observations both in terms of physical findings, ... the lack of objective evidence [of sexual abuse], but also her observations of the child's demeanor ... [which] would relate to his credibility to rebut a potential defense of fabrication here." Finally, she argued that the delay in reporting did "not in any way make [the nurse's] subjective history or the patient's objective history irrelevant," as the nurse would still have to ask the same questions and perform the same examination "whether it's 1 month or 6 years" after the alleged sexual abuse occurred.
The judge agreed that "the issue" was whether the boy's statements were germane to his treatment, and asked what the boy told the nurse. The prosecutor responded that he had "describe[d] basically the oral contact." The judge then said, "I presume it's not a detailed account?" The prosecutor answered affirmatively, and told the judge that she had warned the nurse to stay away from identifying the perpetrator, or where or how many times the alleged sexual abuse occurred. The judge asked if she planned to offer the medical record into evidence. The prosecutor responded that she would rely solely on the nurse's testimony "because there [were] so many things ... that would be improper [she] would have to redact the whole record." The judge ruled that the nurse could testify.
The nurse, who had extensive and specialized training and experience examining child victims of sexual and physical abuse, was asked to perform a medical examination of the boy on May 16, 2006 at the CAC, where she was employed. The boy was at
The prosecutor reminded the witness that she could not "discuss ... details other than what was specifically told to [her] that was relevant to [her] diagnosis and treatment"; and then asked what the boy said about what had happened to him. She answered that the boy indicated that "he had been touched inappropriately," and "gestured to his groin that it had been put in his [sic] mouth and he was asked to put somebody else's into his mouth." She testified that the boy was "embarrassed, [with] downcast eyes, flushed face" when he gave her this information.
The prosecutor next posed questions to the nurse about the physical examination that she performed on the boy. The nurse described the first part as a general examination akin to a regular physical; she testified that the boy's heart rate was elevated, which indicated to her that he was "nervous." The last part of the examination focused on the genital and rectal area. Because of what he told her about "what had happened to him," she "was looking to make sure that the exam would have been normal, that there were no lesions or sores, discharges." The prosecutor next asked the nurse if the absence of lesions was in any way "inconsistent with what [the boy] had told [her] about what had happened." She replied that it was not "[b]ecause we generally would not see or many times ... do not see medical evidence from children who have been touched inappropriately."
The nurse added that she "spent quite awhile talking with" the boy, who was concerned that "people would know that this happened to him." Additionally, "he had some body changes as he was growing up and he was very uncomfortable with that, so [she] spent a long time talking about body change, hormones, normal growth, normal things that happen to your body." The
On cross-examination, the nurse acknowledged that she had no way of knowing whether the history of sexual abuse that the boy related to her was true or false; and that it would not be unusual for a 13-year-old boy to exhibit signs of nervousness when talking to a stranger about "private matters." Further, defense counsel brought out that she knew what physical signs or symptoms to look for that "could be consistent with abuse," and that she "found no physical evidence to support the history that [the boy] even had been touched inappropriately."
This cross-examination caused the prosecutor to return on redirect examination to ground that she had already covered: whether it was "at all unusual" that the nurse did not detect "any lesions or actual physical injury." The nurse replied that it was not unusual. On re-cross-examination, defense counsel countered, asking "And the fact that you found nothing is just as consistent with this child never having been abused or never having been molested, right?" The nurse responded "That is correct, sir."
Defendant contends that the nurse-practitioner's testimony improperly bolstered the boy's credibility "with regard to exactly what he claimed had occurred" by "describ[ing] the exact acts" that he related to her. To the extent that the boy's responses to the nurse's inquiries about why he was at the CAC were germane to diagnosis and treatment—and she testified that they were—these responses were properly admitted as an exception to the hearsay rule (see People v Ortega, 15 N.Y.3d 610 [2010]). Indeed, without the boy's explanation of what he claimed to have happened and when, the nurse would hardly have known where to begin her examination. Moreover, the nurse did not identify who the boy said touched him (cf. People v Caccese, 211 A.D.2d 976, 977 [3d Dept 1995] [allowing nurse to testify that child informed her that foster mother had caused bruises on his hand]); she acknowledged that she did not know whether the boy was being truthful. The testimony about the nature of the alleged abuse consisted of a single question and a brief answer. And the nurse's observations of the boy's demeanor and manner were relevant to her medical decisions
In People v Buie (86 N.Y.2d 501 [1995]), we considered whether the admission of a 911 tape under the hearsay exception for present sense impression, where the declarant was available and testified at trial, improperly bolstered his trial testimony. We explained that the term "bolstering" has "doctrinally referred to two distinct situations, both related to the rule against hearsay" (id. at 509-510). The first common use of the term arose "in the context of eyewitness identification, [where] the testimony of a third party (typically, a police officer) to the effect that the witness identified a defendant as the perpetrator on some prior occasion [was] generally inadmissible" because the "identification evidence [was] hearsay, not falling within any exception" (id. at 510). Second, the term "bolstering" "refers to the fortification of a witness's testimony and credibility through the use of a prior consistent statement ... Such evidence may be admissible, but only to rebut a claim of recent fabrication ... A prior consistent statement is admitted under these limited circumstances as an exception to the hearsay rule" (id. [citations omitted]).
We concluded that the admission of the 911 tape did not constitute improper bolstering, observing that "merely because a statement suffers some impediment under one hearsay exception does not preclude the proponent of the evidence from satisfying a court that a different, better-fitting exception fully applies. That is when the trial courts ... exercise their evaluation of probativeness versus undue prejudice" (id. at 511). Although the 911 tape "plainly did not qualify for admission under the prior consistent statement exception, as there was no charge of recent fabrication ... [it] fulfilled all the requirements independently for the present sense impression exception" and was therefore admissible (id.). Similarly, the nurse's complained-of
The nurse's testimony rounded out the narrative of the immediate aftermath of the boy's disclosure to his mother and, more importantly, addressed the negative inference that jurors might draw from the absence of medical evidence of abuse.
The day jury selection was scheduled to begin, defense counsel argued a motion in limine, seeking to preclude certain evidence, including "the alleged expert testimony of an undisclosed prosecution witness on the topic of" CSAAS.
Defense counsel argued that "[d]elayed disclosure may be indicative of abuse and it might not"; therefore, CSAAS "cannot establish or state that sexual abuse did in fact occur in this case." Further, he complained that
Finally, defense counsel quoted a lengthy excerpt from an article reviewing the disclosure patterns of children with validated histories of sexual abuse. In the excerpt, the authors criticized courts for permitting CSAAS testimony without "carefully scrutiniz[ing]" its scientific basis, and opined that, under the testimonial standard established by Daubert v Merrell Dow Pharmaceuticals, Inc. (509 U.S. 579 [1993]),
Defense counsel took the position that, in light of the quoted excerpt, there did not "appear to be either acceptance within the scientific community that CSAAS identifies and describes behavioral characteristics commonly found in victims of child sexual abuse or that such behavioral characteristics require the use of an expert to assist the jury."
In oral argument of the motion in limine, defense counsel emphasized that there was a "fairly lengthy delay of 6 or 7 years" in this case, and he assumed the prosecution's expert would "say that children who are abused invariably delay reporting ... The expert will say there are reasons for that because of secrecy and other reasons personal to the child." He contended, however, that "[j]uries understand that" and that it was not necessary for "an expert [to] come in and tell a jury that children who are abused don't report it right away and sometimes it takes a long time."
The trial judge then asked "Do you want to stipulate to that." Defense counsel demurred, but he still maintained there was no need for an expert as potential jurors are "besieged with this [information] from the Oprah Show to Montel Williams to Jerry Springer" such that "the proverbial bottom line" was that they "understand [delayed reporting] and we don't need an expert to come in and tell us." He also objected because he assumed "the expert's testimony ... will be that this is the pattern with people who are abused. And when you are abused you wait" so that "even though the expert will say, oh, I never interviewed the victim or his family, the unavoidable inference almost always is that this kid must have been abused because he fits into this so-called pattern."
The prosecutor rejoined that defense counsel's arguments "pertain[ed] to the weight that the jury [would] afford the expert's testimony"; and that the Fourth Department in People
The judge indicated that it was "pretty well settled" that this type of testimony was admissible, apparently referring to Carroll and Miles, and that it was "going to come in." Defense counsel noted that it was "discretionary with the Court," causing the judge to reiterate "It's coming in."
The expert was a licensed clinical social worker at Child and Adolescent Treatment Services in Buffalo, who had extensive and specialized training and experience in the field of child sexual abuse. He testified that since 1975 he had provided direct treatment to over 3,000 children, and had testified in court 222 times, on behalf of both the defense and the prosecution. The expert was asked by the prosecutor if he was "familiar with any of the specific facts of this case," and if he knew "anything at all about the parties involved." He responded negatively on both counts. The prosecutor then questioned him as follows:
The prosecutor asked the expert if he was familiar "with the scientific research" in the field; specifically, CSAAS. The expert answered that he was. He identified CSAAS as originating with Dr. Summit's work in 1983, and listed its five categories—secrecy; helplessness; entrapment and accommodation; delayed, conflicted or unconvincing disclosure; and retraction or recantation. The prosecutor asked if the syndrome was "a diagnosis in any way," and the expert responded "No, it was never intended to be."
The expert testified that CSAAS was generally accepted as valid within the relevant scientific community of his specialty, and that many follow-on studies, "some focusing on how children disclose," had been undertaken since 1983.
The prosecutor next called on the expert to explain each of the five categories in more detail, and posed various questions in this context; specifically, whether the degree of helplessness might vary, depending on the child's age; whether a child is more likely to be abused by a stranger or someone whom the child knows; how a child abused by a trusted adult reacts; whether victims are predominantly male or female; how a child might react if the abuser was someone close to his or her mother; whether the abuse typically occurs outside the direct view of others; whether there are circumstances where the abuse occurs in the presence of others and in what type of case this might happen; whether the concept of secrecy requires a verbal threat; what types of activities, including sexual activity, an abused child might employ as a coping mechanism; whether a child's psychological immaturity might affect willingness to return to the scene of the abuse; whether a child who had been sexually abused might still want to associate with the abuser; whether there was any research linking a higher incidence of delayed disclosure to one sex or the other, and, if so, the factors associated with such a phenomenon and the relative length of delay; whether a delayed disclosure on the order of six or seven years would be unusual; whether the range of delay might include waiting even longer; if the age of the child at the time of the abuse might affect whether there was a delay in reporting; whether a triggering event might prompt disclosure; whether "an educational component about the awareness of sexual abuse" might constitute a triggering event; the emotional consequences for a child after disclosure and whether such consequences might last a long time; how a delay in disclosure might affect a child's memory of the actual abuse; and whether abused children always recant. To "recap," the prosecutor asked "if the child's behavior shows aspects of the first four categories that you discussed, but there is no recantation involved, does that automatically mean or does it still fit within the parameters of the syndrome?" The expert replied that "[s]ince the parameters were meant to get me to think about the child, it's presence or absence is just something I note. It doesn't have diagnostic value."
When defense counsel questioned whether the allegations might have been something the boy "made up" and "may never have happened," the expert replied "I don't know." The following questions and answers ensued:
At this juncture, the prosecutor objected; the judge ruled that defense counsel could "make his point."
Defendant maintains that the trial judge improperly admitted the expert's testimony regarding CSAAS because it bolstered the boy's credibility to prove that the abuse, in fact, occurred. This is not the first time we have dealt with this type of bolstering argument, or a close variation of it. In People v Keindl (68 N.Y.2d 410 [1986]), the defendant was convicted of 26 counts of sodomy, sexual abuse and endangering the welfare of his stepchildren. He contended that the trial court erred in admitting the testimony of a psychiatrist, "presented to explain how children who have been repeatedly sexually abused by their stepfather[ ] [were] likely to suffer psychologically," because such testimony would go to the "ultimate question" of the defendant's guilt of endangering the welfare of a child, which was "within the province of the jury to decide and [was] not a subject matter beyond the ken of the ordinary juror" (id. at 422).
We disagreed, concluding that
In Keindl, the defendant (as was the case here) had attempted to discredit the children by evidence that they had not promptly complained of the crimes (see People v Taylor, 75 N.Y.2d 277, 288 [1990]).
In Matter of Nicole V. (71 N.Y.2d 112 [1987]), the child made statements to her therapist describing sexual abuse by her
In Taylor and People v Banks (75 N.Y.2d 277 [1990]), two cases decided together, we explored the proper and improper uses of expert testimony regarding rape trauma syndrome, affirming the conviction and sentence in Taylor and reversing in Banks. This case is relevant because we analogized this type of expert behavioral testimony to CSAAS, citing Nicole V. and Keindl. In Taylor, the complainant first told the police that she did not know who her attacker was, but then revealed to her mother that her attacker was the defendant, whom she had known for years. The expert—who had not examined the witness and was therefore not reflecting on her behavior specifically—testified "on the specifics of rape trauma syndrome[,] explain[ing] why the complainant might have been unwilling during the first few hours after the attack to name the defendant as her attacker where she had known [him] prior to the incident" (id. at 283). Second, the expert testified that "it was common for a rape victim to appear quiet and controlled following an attack, [which] responded to evidence that the complainant had appeared calm after the attack and tended to rebut the inference that because she was not excited and upset ..., it had not been a rape" (id.). We ruled that this expert evidence was "relevant to dispel misconceptions that jurors might possess regarding the ordinary responses of rape victims in the first hours after their attack" (id. at 293).
In Banks, an 11-year-old girl claimed that the defendant had raped and sodomized her. Both the complainant and her
We commented that although we had "accepted that rape produces identifiable symptoms in rape victims, we [did] not believe that evidence of the presence, or indeed of the absence, of those symptoms necessarily indicate[d] that the incident did or did not occur" (id. at 293); and emphasized that this type of evidence may not be introduced to show that a crime took place.
The defendant in Carroll was convicted of first-degree rape and first-degree sexual abuse. His appeal challenged the legal sufficiency of the proof supporting the rape convictions as well as evidentiary rulings, including the trial court's preclusion of a police-recorded audiotape of the defendant's conversation with the complainant, his stepdaughter. We agreed that the evidence was legally insufficient to sustain the rape convictions and that the complained-of evidentiary ruling was an abuse of discretion "result[ing] in a trial that was decidedly skewed in the People's favor" (Carroll, 95 NY2d at 387 [citation and internal quotation marks omitted]). Accordingly, we reversed the Appellate Division's order sustaining the defendant's convictions, dismissed the counts of the indictment charging rape, and ordered a new trial on the counts charging sexual abuse.
In light of the retrial, we addressed the defendant's objections to expert testimony explaining CSAAS. Citing Keindl and Taylor, we noted that
We pointed out that the expert "did not attempt to impermissibly prove that the charged crimes occurred," and that he "referred to [CSAAS] only generally insofar as it provides an understanding of why children may delay in reporting sexual abuse," and
Here, there was no way for defendant to achieve an acquittal if the jury believed the boy because there was no way that the boy might have been honestly mistaken about defendant's conduct; put another way, for defendant to succeed at trial, the jurors had to conclude that the boy was likely deliberately lying. And so from the beginning, defendant attacked the boy's credibility, principally on the basis that he neglected to report the
As the discussion of our decisions in Keindl, Nicole V., Taylor
Defendant complains that the expert's testimony was not adequately constrained because certain of the hypothetical questions too closely mirrored the boy's circumstances and therefore
Defendant also attacks the scientific reliability of CSAAS, citing the Second Circuit's decision in Gersten v Senkowski (426 F.3d 588 [2d Cir 2005]). Referring to an expert's affidavit in support of the petitioner's federal petition for a writ of habeas corpus, the court declared in Gersten that "[i]t would appear" that CSAAS "lacked any scientific validity for the purpose for which the prosecution utilized it: as a generalized explanation of children's reactions to sexual abuse, including delayed disclosure" (id. at 611). While we have no way of knowing whether the record in Gersten justified the Second Circuit's conclusions about CSAAS, the record here does not support a similar result.
Defense counsel in this case disputed the scientific reliability of CSAAS in the motion in limine, quoting from a review written by London and colleagues, critics of CSAAS; however, the quoted passage does not question the empirical basis for delayed reporting (see supra at 454-455; see also Thomas D. Lyon, Scientific Support for Expert Testimony on Child Sexual Abuse Accommodation, in Critical Issues in Child Sexual Abuse: Historical, Legal, and Psychological Perspectives, at 107, 108 [2002]
Finally, we conclude that the record is insufficient to permit our review of defendant's claim of ineffective assistance of counsel, which he may raise in a CPL 440.10 motion; his remaining claims have been considered and are without merit.
Accordingly, the order of the Appellate Division should be affirmed.
Chief Judge LIPPMAN (dissenting).
This trial concerned events occurring between seven and eight years earlier, as to which no physical evidence could be produced. Defendant did not admit to any unlawful conduct; nor was there any other direct evidence linking him to the crimes. The case, therefore, was essentially a credibility contest between complainant and defendant. The prosecutor thereupon took several steps to improperly and prejudicially bolster the credibility of complainant, as a result of which defendant was deprived of a fair trial. Accordingly, I would reverse and remit to County Court for a new trial.
After complainant reported the alleged sexual abuse to his mother, his physical examination was conducted by a nurse-practitioner
I agree with the majority that those portions of the nurse-practitioner's testimony that were relevant to diagnosis and treatment were properly admitted. For example, testimony concerning complainant's account of what had happened to him, the extent of the ensuing physical examination, the absence of any lesions or other visible signs of sexual abuse on complainant's body and the significance of such absence were all properly admitted as relevant to diagnosis and treatment (see People v Ortega, 15 N.Y.3d 610, 617 [2010]).
The same cannot be said about the nurse-practitioner's testimony concerning complainant's demeanor during the examination. The nurse-practitioner testified that when complainant related what had happened to him, "[h]e was embarrassed, downcast eyes, flushed face." She indicated that she had recorded these details "[b]ecause they were definitely significant when I saw them. He was embarrassed." The nurse-practitioner further testified that complainant's elevated heart rate during the examination indicated to her that "[h]e was nervous."
Complainant's embarrassment or nervousness attending the examination had no medical significance whatsoever. The majority's purported justification for the elicitation of this testimony—that it was relevant to whether some type of counseling or therapy would be required (majority op at 451-452)
Furthermore, in this situation the error cannot be considered harmless. "[U]nless the proof of the defendant's guilt, without reference to the error, is overwhelming, there is no occasion for consideration of any doctrine of harmless error" (People v Crimmins, 36 N.Y.2d 230, 241 [1975]). As noted, the People's case rested almost entirely on the credibility of the alleged victim. It was therefore blatantly improper and prejudicial to use the testimony of a medical professional to bolster complainant's testimony in this manner.
Moreover, the error was egregiously compounded by the scope of the expert testimony on child sexual abuse accommodation syndrome (CSAAS). Prior to trial, defense counsel sought to preclude the CSAAS expert's testimony for two reasons. Counsel argued, first, that the subject matter of the expert's testimony— that children often delay reporting abuse—was not outside the ken of the average juror. In addition, counsel asserted that the expert's testimony would be "overwhelmingly prejudicial and unfair" because the jury would inevitably draw the conclusion that complainant had been abused because he fit within the pattern of behavior recognized by CSAAS. The request was denied and the prosecutor proceeded to ask the expert, in hypothetical terms, about virtually every detail in the case.
Several aspects of complainant's testimony were later raised with the CSAAS expert. Specifically, during his direct testimony, complainant detailed his sexual abuse by a family member—his mother's second cousin. Complainant also related two incidents where he and his young friends had touched each other's penises, which complainant explained was, at least in part, because he was repeating behavior that had been done to him by defendant. Complainant further testified that what ultimately convinced him to tell his mother about the sexual abuse was a video about catching on-line predators that he had watched with his eighth grade computer tech class. Additionally, on cross-examination, complainant testified that his memory had improved as the years passed. Complainant also testified that he was not afraid to return to defendant's house after the alleged abuse, but rather that he wanted to go to the house and had fun when he was there.
"[E]xpert opinion is proper when it would help to clarify an issue calling for professional or technical knowledge, possessed by the expert and beyond the ken of the typical juror" (People v Taylor, 75 N.Y.2d 277, 288 [1990] [citation omitted]). However, where "the sole reason for questioning the `expert' witness is to bolster the testimony of [the complainant] by explaining that his version of the events is more believable than the defendant's, the `expert's' testimony is equivalent to an opinion that the defendant is guilty, and the receipt of such testimony may not be condoned" (People v Ciaccio, 47 N.Y.2d 431, 439 [1979]). Although we have recognized that CSAAS can be used for the purpose of explaining behavior by a complainant that might appear unusual to the average juror—such as why a child might not immediately report sexual abuse—we have contrasted the permissible use of such testimony with testimony that opines that complainant's "behavior [was] consistent with such abuse" (People v Carroll, 95 N.Y.2d 375, 387 [2000]; see also People v
Even though the expert did not expressly render an opinion as to whether or not complainant was a victim of sexual abuse, the expert's confirmation of nearly every detail of the case and of complainant's behavior as consistent with that of a victim of sexual abuse was the functional equivalent of rendering an opinion as to complainant's truthfulness (see Ciaccio, 47 NY2d at 439). The expert's testimony had the effect of improperly bolstering complainant's testimony and, in the context of this case, was extremely prejudicial.
As noted above, this was a case where the credibility of the parties was the key issue facing the jury. Each of the errors, in bolstering complainant's testimony with the nurse-practitioner's perception of his demeanor and the CSAAS expert's validation of his behavior as consistent with that of a victim of sexual abuse, and certainly their cumulative effect, deprived defendant of a fair trial.
Order affirmed.
At defense counsel's request, the trial judge also gave the standard expert witness charge (see CJI2d[NY] Expert Witness). He added that "Basically, ... opinions of expert witnesses are subject to the same rules and tests concerning reliability as the testimony of any other witness."
