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This memorandum is uncorrected and subject to revision before

publication in the New York Reports.

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No. 167 

The People &c.,

 Respondent,

 v.

William Cullen,

 Appellant.

Kristen N. McDermott, for appellant.

James P. Maxwell, for respondent.

MEMORANDUM:

The order of the Appellate Division should be affirmed.

Complainant, who was born in 1993, discovered the

identity of her biological father, defendant William Cullen, in

early 2006 when she was 12 years old. She expressed a desire to

get to know him, and her mother arranged for the three of them 

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to meet at a restaurant at a local mall. In June 2006, just

after complainant turned 13 years old, she moved in with

defendant. She resided with defendant until mid-October 2007,

and visited him on a few occasions later that fall over a

weekend. On December 12, 2007, complainant entered the Cayuga

Home for Children (CHC) in Auburn, New York, where she had been

placed by Family Court. Later in December 2007, complainant

discovered that she was pregnant.

Complainant knew that defendant was the father because,

beginning in the summer of 2007, he had forced her to have sex

with him, including on her last weekend visit with him in

November 2007. At first, she lied that the father was "David,"

someone whom she invented. In the spring of 2008, however,

complainant dropped a "hint" about defendant's sexual conduct

towards her in a conversation with her mother. She finally fully

disclosed the truth to a CHC counselor. She later testified that

after her pregnancy was terminated, the counselor kept

"drilling," pressing her to reveal what was wrong, and

"eventually [complainant] just popped [because she] couldn't deal

with it anymore . . . [Defendant] just kept not being a father,

and . . . everything that he did built up and built up and built

up, and [she] ended up just saying everything." 

In March 2009, defendant was indicted for second-degree

rape (Penal Law § 130.30 [1]), second-degree incest (Penal Law §

255.26) and other crimes. At his ensuing jury trial, Supreme

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Court, over objection, allowed the prosecutor to ask

complainant's mother if she "remember[ed] having a conversation

with [complainant] . . . regarding conduct by her father," and

when this occurred; and if she remembered "receiving information

that [complainant] had made a disclosure to someone at CHC," and

when this occurred. Again over objection, the CHC counselor was

asked if she had ever had a conversation with complainant about

her father, and if, on April 14, 2008, complainant made a

disclosure to her "about some sexual misconduct by [defendant]." 

The counselor answered "yes" to both questions, and the judge

advised the jury that this testimony "[was] not evidence that

[defendant] did anything wrong. It just explains the subsequent

conduct of the witness. It's not evidence that [defendant] did

anything wrong, it's hearsay."

The jury convicted defendant of rape, incest and other

sexual crimes; Supreme Court sentenced him to 15 years in prison,

to be followed by 5 years of postrelease supervision. Defendant

appealed, and the Appellate Division unanimously affirmed (110

AD3d 1474 [4th Dept 2013]). Citing its earlier decision in

People v Ludwig (104 AD3d 1162 [4th Dept 2013]), the court

rejected defendant's claim of improper bolstering because the

objected-to testimony of complainant's mother and the CHC

counselor "was not admitted for its truth" (id. at 1475). The

Appellate Division also disallowed defendant's other claims (that

pervasive misconduct permeated the prosecutor's summation; and

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that the trial judge improperly constructively amended the

indictment and admitted evidence of prior bad acts), to the

extent preserved, and concluded that defendant had received the

effective assistance of counsel. A Judge of this Court granted

defendant permission to appeal (22 NY3d 1087 [2014]), and we now

affirm. 

The trial judge did not abuse his discretion when he

allowed the People to elicit testimony about the fact and timing

of complainant's revelations for the nonhearsay purpose of

explaining the events kicking off the investigative process that

led to the charges against defendant (see generally People v

Ludwig, __ NY3d __, 2014 N.Y. LEXIS ___ [2014] [decided today]). 

Complainant admittedly passed up many opportunities to report

defendant's alleged sexual misconduct, and the defense attributed

her accusations to the wrath of a troubled girl trying to get

even with defendant for not winning her release from the CHC

group home and taking her back to live with him. The jury was

therefore permitted to consider evidence of the circumstances of

complainant's delayed disclosure. Finally, we consider

defendant's claim of ineffective assistance of counsel to be

without merit.

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People v Cullen

No. 167 

LIPPMAN, Chief Judge (concurring in result):

For the reasons stated in my dissent in the companion

case of People v Ludwig, I disagree with the majority's reasoning

in this case. However, here the court confined the statements to

the report alone, and prohibited witnesses from repeating the

complainant's statements concerning the description of the crime

itself. Given the overwhelming evidence against defendant in

this case and the less prejudicial nature of the error, I would

find the error here harmless (People v McDaniel, 81 NY2d 10, 18

[1993]). 

* * * * * * * * * * * * * * * * *

Order affirmed, in a memorandum. Judges Graffeo, Read, Pigott

and Abdus-Salaam concur. Chief Judge Lippman concurs in result

in an opinion in which Judge Rivera concurs. Judge Smith concurs

in result for reasons stated in his concurring opinion in People

v Ludwig, ___ NY3d ___ (decided today).

Decided October 23, 2014

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