| People v Goupil |
| 2013 NY Slip Op 01704 [104 AD3d 1215] |
| March 15, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v MarkK. Goupil, Appellant. |
—[*1] Michael J. Violante, District Attorney, Lockport (Thomas H. Brandt of counsel), forrespondent.
Appeal from a judgment of the Niagara County Court (Matthew J. Murphy, III, J.),rendered February 17, 2010. The judgment convicted defendant, upon a jury verdict, ofpredatory sexual assault against a child (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 ofthree counts of predatory sexual assault against a child (Penal Law § 130.96),defendant contends that County Court erred in refusing to permit him to introduceevidence of the victim's prior sexual conduct pursuant to CPL 60.42. We reject thatcontention. The evidence in question does " 'not fall within any of the exceptions setforth in CPL 60.42 (1) through (4), and defendant failed to make an offer of proofdemonstrating that such evidence was relevant and admissible pursuant to CPL 60.42 (5)'" (People v Wright, 37AD3d 1142, 1143 [2007], lv denied 8 NY3d 951 [2007]; see People v Halter, 19 NY3d1046, 1049 [2012]).
We also conclude that defendant failed to preserve for our review his contention thathe was deprived of a fair trial based on prosecutorial misconduct during summation(see CPL 470.05 [2]; People v Brown, 94 AD3d 1461, 1462 [2012], lvdenied 19 NY3d 995 [2012]). In any event, defendant's contention is without meritbecause the prosecutor's comments were " 'either a fair response to defense counsel'ssummation or fair comment on the evidence' " (People v Green, 60 AD3d 1320, 1322 [2009], lvdenied 12 NY3d 915 [2009]).
Defendant failed to preserve for our review his further contention that he was denieda fair trial based on the testimony of an expert with respect to child sexual abuseaccommodation syndrome (CSAAS) (see People v Lawrence, 81 AD3d 1326, 1327 [2011], lvdenied 17 NY3d 797 [2011]) and, in any event, that contention is without merit."Expert testimony concerning CSAAS is admissible to assist the jury in understandingthe unusual conduct of victims of child sexual abuse where, as here, the testimony isgeneral in nature and does 'not attempt to impermissibly prove that the charged crimesoccurred' " (People v Filer,97 AD3d 1095, 1096 [2012], lv denied 19 NY3d 1025 [2012], quotingPeople v Carroll, 95 NY2d 375, 387 [2000]).
We reject defendant's contention that he was denied effective assistance of counsel.[*2]Viewing the evidence, the law and the circumstancesof this case, in totality and as of the time of the representation, we conclude on the recordbefore us that defendant received meaningful representation (see generally People vFlores, 84 NY2d 184, 187 [1994]; People v Baldi, 54 NY2d 137, 147[1981]). Insofar as defendant contends that defense counsel was ineffective in hercross-examination of the victim, we conclude that " '[s]peculation that a more vigorouscross-examination might have [undermined the credibility of a witness] does notestablish ineffectiveness of counsel' " (People v Bassett, 55 AD3d 1434, 1438 [2008], lvdenied 11 NY3d 922 [2009]). Contrary to his further contention, "[d]efendant wasnot denied effective assistance of counsel based on defense counsel's failure to object tothe allegedly improper comments by the prosecutor on summation inasmuch as thosecomments did not constitute prosecutorial misconduct" (People v Hill, 82 AD3d1715, 1716 [2011], lv denied 17 NY3d 806 [2011]). Finally, the sentence isnot unduly harsh or severe. Present—Smith, J.P., Peradotto, Carni, Valentino andMartoche, JJ.