People v. Parada , 889 N.Y.S.2d 159 ( 2009 )

Judgment, Supreme Court, New York County (Gregory Carro, J.), rendered June 18, 2007, convicting defendant, after a jury trial, of course of sexual conduct against a child in the first degree, and sentencing him to a term of 20 years, affirmed.

The court properly admitted the victim’s disclosure to her cousin, as it was made during the period wherein she was being sexually abused. We have held that “the prompt outcry exception” is applicable to “an outcry made ... at the end of a course of sexual conduct” (People v Stuckey, 50 AD3d 447, 448 [2008], lv denied 11 NY3d 742 [2008]). Although the victim’s disclosure to her aunt did not qualify under that exception, any error in admitting that evidence was harmless (see People v Crimmins, 36 NY2d 230 [1975]; see also People v Leon, 209 AD2d 342, 343 [1994], lv denied 84 NY2d 1034 [1995]).

Defendant did not preserve his other challenges to prior consistent statements by the victim, and we decline to review them in the interest of justice. As an alternative holding, we reject them on the merits. The statements at issue, contained in medical records, were sufficiently related to diagnosis and treatment to be admissible (see People v Rogers, 8 AD3d 888, 892 [2004]; People v Bailey, 252 AD2d 815 [1998], lv denied 92 NY2d 922 [1998]). A statement made by the victim to a detective was rendered admissible by the prior defense cross-examination of the detective regarding the same matter (see People v Melendez, 55 NY2d 445, 451-452 [1982]; People v Torre, 42 NY2d 1036, 1037 [1977]). A trial court has the discretion to decide “door opening” issues “by considering whether, and to what extent, the evidence or argument said to open the door is incomplete and misleading, and what if any otherwise inadmissible evidence is reasonably necessary to correct the misleading impression” (People v Massie, 2 NY3d 179, 184 [2004]). Here, the court’s ruling was within its discretion and should not be disturbed.

Defendant’s challenges to the People’s summation are unpreserved, and we decline to review them in the interest of justice. As an alternative holding, we also find that the challenged portions of the summation constituted permissible argument (see People v Overlee, 236 AD2d 133 [1997], lv denied 91 NY2d 976 [1998]; People v D’Alessandro, 184 AD2d 114, 118-119 [1992], lv denied 81 NY2d 884 [1993]), with the exception of arguments that tended to treat the expert testimony on typical victim behavior as evidence that the alleged sexual conduct actually occurred (see People v Banks, 75 NY2d 277, 293 [1990]). While the prosecutor improperly cited expert testimony to suggest that the victim’s change in behavior was indicative of her having been abused, we find no basis to disturb the jury’s determination regarding the credibility of the victim’s strong testimony, and find the error to be harmless in any event (see People v Bennett, 273 AD2d 108 [2000], lv denied 96 NY2d 797 [2001]).

To the extent the existing record permits review, we find that defendant received effective assistance under the state and federal standards (see People v Benevento, 91 NY2d 708, 713-714 [1998]; see also Strickland v Washington, 466 US 668 [1984]). Defense counsel’s failure to object, or to make specific objections to the prosecutor’s summation and to certain prior consistent statements by the victim, did not cause defendant any prejudice or deprive him of a fair trial. Even if trial counsel had successfully objected to the evidence and summation comments that defendant now challenges on appeal, we do not find any reasonable probability that the outcome of the trial would have been different. Concur—Tom, J.E, Saxe and Sweeny, JJ.