People v. Seaman

Peters, J. (concurring in part and dissenting in part).

While I agree with my colleagues that the jury verdict convicting defendant of the crime of sodomy in the third degree was not against the weight of the evidence, I disagree with their conclusion that defendant was deprived of a fair trial by the improper admission of lay and expert testimony.

Defendant contends, and my colleagues agree, that he was denied a fair trial by the erroneous admission of sexual climate evidence. At trial, defendant, an attorney himself, was represented by counsel of his choosing. In the opening statement, counsel for defendant told the jury about his client. He described him as, inter alia, "a good guy”, "a well-respected lawyer”, "a public official” and "a pillar of the volunteer fire department”. He stated that defendant "was generally regarded to be one of the finest people who lived * * * [in Mountainville]’’. He further told the jury that he was "a very devoted, very devoted family man”, always available to help children fix their broken bikes and put his children on the school bus. Finally, he told them that "as the children got older * * * [he] provided them with things to do. He would take his children and * * * [their] friends up to a cabin in Minerva, New York. The cabin was used for different kinds of weekends. Some were devoted exclusively to skiing, and some were mens’ weekends.”

The victim testified extensively and was subjected to vigorous cross-examination. During his direct testimony, he was questioned, without objection, about the activities and routines engaged in by the boys who visited the cabin. He testified specifically about the availability of beer and cigars, the nude hot tub activities in which defendant participated, magazines and movies they were permitted to view and a light switch which depicted a man with his pants down—the switch being the man’s penis. Since none of this testimony describing the environment in which the alleged sodomy occurred was objected to, any error now raised concerning its admission is not properly preserved for our review (see, CPL 470.05; People v Nuccie, 57 NY2d 818). Had it been properly preserved, I would still disagree that such evidence was introduced solely to demonstrate that defendant was predisposed to committing the offense. Rather, given the prestidigitation of counsel to create the seemingly impeccable moral character of this defendant, I find the admission of evidence describing the climate of this rural cabin to which these young boys were taken to be entirely proper (see, People v Wynn, 208 AD2d 576, 577, lv denied 85 NY2d 916; People v Klos, 190 AD2d 754, 755-756, lv denied 81 NY2d 972).

As to the expert testimony of Paul Etu, characterized by the majority as being "elicited for the unmistakable purpose of demonstrating that the victim had been sodomized”, not only do I disagree with their determination of its purpose, I also find their determination to exercise their interest of justice jurisdiction in this situation (CPL 470.15 [6]) wholly inappropriate. The record reveals that Etu made it quite clear that he had never examined this victim and that he had no opinion as to whether this victim had ever been sexually abused. His testimony concerning behavioral changes which might occur when a person has been sexually abused was relevant to the issues before this jury and appropriately "limited to explain[ ] behavior that might appear unusual to a lay juror” (People v Archer, 232 AD2d 820, 821; see, People v Taylor, 75 NY2d 277, 288; People v Shay, 210 AD2d 735, 735-736, lv denied 85 NY2d 980; People v Singh, 186 AD2d 285, 285-286).

I must further note the failure of defendant, once again, to make any objection during Etu’s direct testimony. Waiting until the following day of trial, counsel first raised the issue, in chambers, before conducting his cross-examination. While defendant contends that this action is sufficient to preserve the issue for review, I disagree (see, People v Nuccie, 57 NY2d 818; People v Southwick, 232 AD2d 755, 756, lv denied 89 NY2d 930) and find no basis to now exercise our review powers (see, People v Naranjo, 194 AD2d 747, lv denied 82 NY2d 900). Notably, even in defendant’s motion to set aside the verdict, this alleged error was not raised (see, CPL 330.30 [1]).

Finally, unlike the majority, I believe that the jury properly assessed the credibility of both defendant and the victim, with no substantial prejudice causing this verdict. Mindful of the "[g]reat deference * * * accorded to the fact-finder’s opportunity to view the witnesses, hear the testimony and observe demeanor” (People v Bleakley, 69 NY2d 490, 495), this jury chose to credit the testimony of the 14-year-old victim, who admitted that his conduct both at home and at school was less than angelic, over that of the "well-respected” attorney-defendant.

I agree that defendant may have received less than a perfect trial, but a perfect trial is not what our system of justice guarantees. While "this court has * * * an interest in seeing that justice is done * * * [and] a duty to correct injustices presented” (People v Bourne, 139 AD2d 210, 215, lv denied 72 NY2d 955), I find no error which should cause us to exercise our interest of justice jurisdiction and go so far as to reverse this conviction.

For the foregoing reasons, I believe that defendant’s conviction of the crime of sodomy in the third degree should be affirmed.

Ordered that the judgment is reversed, on the law, and matter remitted to the County Court of Essex County for a new trial.