| People v Pruitt |
| 2012 NY Slip Op 06553 [99 AD3d 413] |
| October 2, 2012 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Johnny Pruitt, Appellant. |
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Cyrus R. Vance, Jr., District Attorney, New York (Philip Morrow of counsel), forrespondent.
Judgment, Supreme Court, New York County (Michael R. Sonberg, J., atSandoval/Molineux hearing; Ruth Pickholz, J., at jury trial and sentencing),rendered June 16, 2009, as amended August 31, 2009, convicting defendant, after a jury trial, ofcourse of sexual conduct against a child in the first degree, two counts of sexual abuse in the firstdegree, and two counts of endangering the welfare of a child, and sentencing him, as a secondfelony offender, to an aggregate term of 20 years, unanimously affirmed.
Defendant failed to preserve, or affirmatively waived, each of his challenges to the hearingand trial court's evidentiary and Sandoval rulings, and his related claims regarding theabsence of limiting instructions, and we decline to review them in the interest of justice. As analternative holding, we also reject them on the merits, with the following exceptions. While thecourt properly admitted testimony by two witnesses under the prompt outcry exception to thehearsay rule (see People v Parada,67 AD3d 581, 582 [1st Dept 2009], affd 17 NY3d 501 [2011]), we find that thevictim's statement to her teacher, many years after the events in question, was inadmissible, butthat the error was harmless (see People v Crimmins, 36 NY2d 230 [1975]). The absenceof limiting instructions regarding the prompt outcry evidence and evidence of an unchargedcrime was likewise harmless.
Defendant asserts that his counsel rendered ineffective assistance by expressly waiving orfailing to raise the issues that defendant raises on appeal. Although defendant raised hisineffective assistance claim in a CPL 440.10 motion, that motion was denied, as was his motionfor leave to appeal to this Court (see CPL 450.15 [1]; 460.15). Accordingly, our review islimited to the trial record.
To the extent the trial record permits review, we conclude that defendant received effectiveassistance under the state and federal standards (see People v Benevento, 91 NY2d 708,713-714 [1998]; see also Strickland v Washington, 466 US 668 [1984]). Defendant hasnot shown "the absence of strategic or other legitimate explanations" for counsel's allegeddeficiencies (People v Rivera, 71 NY2d 705, 709 [1988]; see also People v Taylor, 1 NY3d174, 177 [2003]). Furthermore, defendant has not [*2]shownthat any of these alleged deficiencies fell below an objective standard of reasonableness, or that,viewed individually or collectively, they deprived defendant of a fair trial, affected the outcomeof the case, or caused defendant any prejudice. In particular, we note that the prompt outcryevidence provided by the victim's mother and boyfriend was admissible, and that objections tothis testimony would have been futile. Concur—Friedman, J.P., Acosta, Renwick, Richterand Abdus-Salaam, JJ.