LEMERY, DAVID, PEOPLE v

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department [737] KA 12-02387 PRESENT: SCUDDER, P.J., CENTRA, FAHEY, CARNI, AND LINDLEY, JJ. THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, V MEMORANDUM AND ORDER DAVID LEMERY, DEFENDANT-APPELLANT. BRUCE R. BRYAN, SYRACUSE, FOR DEFENDANT-APPELLANT. SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF COUNSEL), FOR RESPONDENT. Appeal from a judgment of the Oneida County Court (Michael L. Dwyer, J.), rendered July 11, 2012. The judgment convicted defendant, upon a jury verdict, of course of sexual conduct against a child in the second degree. It is hereby ORDERED that the judgment so appealed from is unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of course of sexual conduct against a child in the second degree (Penal Law § 130.80 [1] [a]). Contrary to defendant’s contention, County Court properly exercised its discretion in precluding defendant from introducing expert testimony with respect to whether defendant, as the result of chemotherapy treatments, had a diminished mental capacity that prevented him from understanding what he was saying in taped conversations he had with the victim that were inculpatory in nature (see People v Covington, 298 AD2d 930, 930 , lv denied 99 NY2d 557 ). “As a general rule, the admissibility and limits of expert testimony lie primarily in the sound discretion of the trial court” (People v Lee, 96 NY2d 157, 162 ; see People v Williams, 97 NY2d 735, 736 ; People v Cronin, 60 NY2d 430, 433 ). Under the circumstances of this case, we conclude that evaluating defendant’s recorded conversations with the victim was “within the ken of the typical juror” (Cronin, 60 NY2d at 433 ; see Covington, 298 AD2d at 930 ). Additionally, the proposed expert was unable to testify to a reasonable degree of medical certainty that chemotherapy treatments caused defendant’s purported deficits (see generally People v Allweiss, 48 NY2d 40, 50 ). Contrary to defendant’s further contention, we conclude that the court properly prohibited defendant from cross-examining the victim with respect to her prior juvenile adjudication. It is “impermissible to use a youthful offender or juvenile delinquency adjudication as an -2- 737 KA 12-02387 impeachment weapon, because these adjudications are not convictions of a crime” (People v Gray, 84 NY2d 709, 712 [internal quotation marks omitted]). The extent to which a party may use the “ ‘illegal or immoral acts underlying such adjudications’ ” to impeach the credibility of a witness is a matter that is generally left to the discretion of the court (id.; see generally People v Sandoval, 34 NY2d 371, 375 ). Here, the court properly exercised its discretion in precluding cross-examination with respect to the prior bad acts underlying the victim’s juvenile adjudication inasmuch as they did not reflect on her credibility (cf. People v Bell, 265 AD2d 813, 814 , lv denied 94 NY2d 916 ; see generally Sandoval, 34 NY2d at 376 ). Additionally, viewing the evidence in light of the elements of the crime as charged to the jury (see People v Danielson, 9 NY3d 342, 349 ), we conclude that the verdict is not against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495 ). Contrary to defendant’s contention, the victim’s testimony was not incredible as a matter of law, and we afford “ ‘deference to the jury’s superior ability to evaluate the credibility of the People’s witnesses’ ” (People v Baker, 30 AD3d 1102, 1103 , lv denied 7 NY3d 846 ). Finally, the sentence is not unduly harsh or severe; the threeyear determinate sentence of incarceration is at the lower end of the legal sentencing range and thus indicates that the sentencing court considered defendant’s mitigating circumstances (Penal Law §§ 70.80 [4] [a] [iii]; 130.80). Entered: June 14, 2013 Frances E. Cafarell Clerk of the Court