| People v Burgos |
| 2011 NY Slip Op 09731 [90 AD3d 1670] |
| December 30, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v David Burgos,Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (Victoria M. White of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Onondaga County (John J. Brunetti, A.J.),rendered December 22, 2009. The judgment convicted defendant, upon a jury verdict, of courseof sexual conduct against a child in the first degree and endangering the welfare of a child.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him following a jury trial ofcourse of sexual conduct against a child in the first degree (Penal Law § 130.75 [1] [b])and endangering the welfare of a child (§ 260.10 [1]). By its verdict, the jury found thatdefendant sexually abused his former girlfriend's daughter from the time the child was 8 years olduntil she was almost 13 years old. We reject defendant's contention that he was denied effectiveassistance of counsel based upon, inter alia, defense counsel's failure to call a medical expert totestify regarding the absence of physical evidence of sexual abuse. It is well established that, "[t]oprevail on a claim of ineffective assistance of counsel, it is incumbent on defendant todemonstrate the absence of strategic or other legitimate explanations for counsel's failure to" callsuch a witness (People v Rivera, 71 NY2d 705, 709 [1988]), and he failed to do so here.Indeed, given the delay between the last act of abuse and the victim's disclosure, i.e., a period inexcess of one year, and given the fact that there was never any vaginal penetration, it was notlikely that there would be physical evidence of abuse. We note in any event that defendant relieson Gersten v Senkowski (426 F3d 588 [2005], cert denied 547 US 1191 [2006])in support of his contention, but we conclude that his reliance thereon is misplaced. In that case,the petition for a writ of habeas corpus was granted based, in part, upon the failure of petitioner'strial attorney to obtain a medical expert to challenge the testimony of the People's expert that aphysical examination of the victim showed signs of sexual abuse. Here, unlike inGersten, the People offered no such expert testimony regarding signs of abuse. We haveexamined the remaining allegations of ineffective assistance of counsel raised by defendant andconclude that they lack merit (see generally People v Baldi, 54 NY2d 137, 147 [1981]).
We also reject defendant's contention that the People failed in the indictment and supersedingindictment to specify the time, date and place of the alleged offenses in an adequate manner. "'The text and legislative history of [the crime of course of sexual conduct against a child] makeclear that it is a continuing crime to which the usual requirements of specificity with [*2]respect to time do not pertain' " (People v McLoud, 291AD2d 867, 868 [2002], lv denied 98 NY2d 678 [2002]). That principle applies equally tothe crime of endangering the welfare of a child (see People v Keindl, 68 NY2d 410,421-422 [1986], rearg denied 69 NY2d 823 [1987]). We conclude that the period of timeset forth in the superseding indictment "was sufficient to give defendant adequate notice of thecharges to enable him to prepare a defense, to ensure that the crimes for which he was tried werein fact the crimes with which he was charged, and 'to protect [his] right not to be twice placed injeopardy for the same conduct' " (McLoud, 291 AD2d at 868; see Keindl, 68NY2d at 416-417).
Viewing the evidence in light of the elements of the crimes 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]).Although as noted the victim failed to disclose the sexual abuse for over a year, and evenassuming that she had a motive to fabricate the charges, her credibility was an issue for the jurorsto determine, and we perceive no basis for disturbing their credibility determination (see People v Massey, 61 AD3d1433 [2009], lv denied 13 NY3d 746 [2009]). We also reject defendant's contentionthat the People misled him concerning a Valentine's Day card sent by him to the victim becausetheir bill of particulars indicated that they did not intend to offer at trial any statements made bydefendant. The People's duty to disclose statements by a defendant extends only to statementsmade "to a public servant engaged in law enforcement activity or to a person then acting under[the public servant's] direction or in cooperation with him [or her]" (CPL 240.20 [1] [a]).Statements made by a defendant to persons not acting "in any law enforcement capacity" are notdiscoverable (People v Swart, 273 AD2d 503, 504 [2000], lv denied 95 NY2d908 [2000]).
Contrary to defendant's contention, Supreme Court did not err in admitting evidenceregarding the victim's disclosure of the abuse to third parties. The record establishes both that theevidence was not admitted for its truth, and that the court gave an appropriate limiting instructionto that effect (see People v Tosca, 98 NY2d 660 [2002]; People v Shivers, 301AD2d 473, 473-474 [2003], lv denied 99 NY2d 658 [2003]). We further conclude thatthe court properly admitted evidence that the victim was in counseling at the time she disclosedthe abuse, inasmuch as it provided background information as to how the abuse was ultimatelydisclosed (see generally People vBassett, 55 AD3d 1434, 1436 [2008], lv denied 11 NY3d 922 [2009]).
The sentence is not unduly harsh or severe. We have reviewed defendant's remainingcontentions and conclude that they are without merit. Present—Scudder, P.J., Centra,Carni, Lindley and Martoche, JJ.