| People v Elliott |
| 2010 NY Slip Op 03989 [73 AD3d 1444] |
| May 7, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v JonathanElliott, Appellant. |
—[*1] Thomas E. Moran, District Attorney, Geneseo (Eric R. Schiener of counsel), forrespondent.
Appeal from a judgment of the Livingston County Court (Dennis S. Cohen, J.), renderedJune 28, 2007. The judgment convicted defendant, upon a jury verdict, of use of a child in asexual performance (three counts).
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of threecounts of use of a child in a sexual performance (Penal Law § 263.05), defendant contendsthat the evidence is legally insufficient to support the conviction because the sexualperformances were not exhibited before an audience but, rather, were observed by defendantalone. Defendant failed to preserve that contention for our review inasmuch as he failed to renewhis motion for a trial order of dismissal on that ground after presenting evidence (see Peoplev Hines, 97 NY2d 56, 61 [2001], rearg denied 97 NY2d 678 [2001]). Viewing theevidence in light of the elements of the crime as charged to the jury (see People v Danielson, 9 NY3d342, 349 [2007]), we reject defendant's further contention that the verdict is against theweight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]).
We also reject the contention of defendant that he was denied effective assistance of counsel(see generally People v Baldi, 54 NY2d 137, 147 [1981]). With respect to defensecounsel's failure to object to certain derogatory testimony concerning defendant's drug use andcorporal punishment of the children in question, defendant failed " 'to demonstrate the absence ofstrategic or other legitimate explanations' for [defense] counsel's alleged shortcomings"(People v Benevento, 91 NY2d 708, 712 [1998]; see People v Douglas, 60 AD3d 1377 [2009], lv denied 12NY3d 914 [2009]). The record does not support defendant's contention that defense counselfailed to conduct an adequate investigation into the reliability of child abuse accommodationsyndrome. In any event, even assuming, arguendo, that defense counsel could have presentedalternative psychological theories to the jury, we conclude that his failure to do so was not so "'egregious and prejudicial as to compromise . . . defendant's right to a fair trial' "(People v Washington, 60 AD3d1454, 1455 [2009], lv denied 12 NY3d 922 [2009]). Finally, the sentence, themaximum of which is 10 to 20 years, is not unduly harsh or severe. Present—Scudder,P.J., Smith, Peradotto, Lindley and Sconiers, JJ.