| People v Gross |
| 2014 NY Slip Op 04592 [118 AD3d 1383] |
| June 20, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vGordon Gross, Appellant. |
Easton Thompson Kasperek Shiffrin LLP, Rochester (Brian Shiffrin of counsel), fordefendant-appellant.
Richard M. Healy, District Attorney, Lyons (Melvin Bressler of counsel), forrespondent.
Appeal, by permission of a Justice of the Appellate Division of the Supreme Court inthe Fourth Judicial Department, from an order of the Wayne County Court (John B.Nesbitt, J.), dated March 27, 2013. The order denied the motion of defendant pursuant toCPL 440.10.
It is hereby ordered that the order so appealed from is affirmed.
Memorandum: Defendant appeals from an order denying his motion pursuant to CPL440.10 seeking to vacate the judgment convicting him of, inter alia, course of sexualconduct against a child in the first degree (Penal Law § 130.75 [1] [b]),which we previously affirmed (People v Gross, 79 AD3d 1660 [2010], lv denied16 NY3d 895 [2011]). In support of his motion, defendant contended that he wasdenied effective assistance of counsel based on defense counsel's failure to object to thetestimony of certain non-expert witnesses on the ground that the testimony bolstered thetestimony of the victim. Defendant submitted the affirmation of his present attorney, whostated that, when he spoke to trial counsel, she informed him that she did not have astrategic basis for her failure to object to the testimony or to the prosecutor's reference tothe testimony during summation. County Court determined that the testimony, which didnot reveal the nature of the conversation that the victim had with the respective witnesses(cf. People v Rosario, 17NY3d 501, 507-508 [2011]; People v McDaniel, 81 NY2d 10, 14 [1993]),"was not prejudicial so as to make defense counsel's failure to object tantamount toineffective assistance of counsel." Prior to the court's decision in this matter, however,we determined in People vLudwig (104 AD3d 1162, 1163 [2013], lv granted 21 NY3d 1043[2013]) that the testimony "to explain how the victim eventually disclosed the abuse andhow the investigation started" did not constitute improper bolstering because it was notadmitted for its truth and thus that defense counsel's failure to object to the testimony didnot constitute ineffective assistance of counsel. We therefore conclude that defendant'scontention lacks merit.
Although not specifically contended by defendant, our dissenting colleaguesconclude that defense counsel was ineffective by failing to object to the testimony of thevictim that she reported to her mother at age six that defendant had touched her in asexual manner; that she reported to her sister at age 14 that defendant had raped her; andthat she told a police witness and the grand jury what she told the jury during hertestimony. We respectfully disagree with that conclusion. Although the dissent correctlynotes that the repetition of prior consistent statements may "give to a jury an exaggeratedidea of the probative force of a party's case" (People v Smith, 22 NY3d 462, 466 [2013]), here, thevictim's testimony constituted a narrative of events. Indeed, she did not repeat thespecific allegations of her testimony, i.e., that defendant had engaged in anal penetration(cf. People v McNeill, 107AD3d 1430, 1431 [2013], lv denied 22 NY3d 957 [2013]). In light ofdefense counsel's opening statement that the relationship between defendant, the victimand the victim's mother was such that it could "cause someone to make fake allegations,"the narrative of events was relevant. We also disagree with our dissenting colleagues thatdefense counsel's failure to object to the prosecutor's remarks during summationreferencing that testimony constitutes ineffective assistance of counsel. Because theremarks were a fair response to defense counsel's summation challenging the credibilityof the victim and her motivation for making the accusations (see People v Martinez, 114AD3d 1173, 1173 [2014]), we conclude that the failure of defense counsel to objectto those comments does not constitute ineffective assistance of counsel (see id. at1174).
We also reject defendant's contention that defense counsel's failure to consult with amedical expert constitutes ineffective assistance of counsel (see People v Flores, 83 AD3d1460, 1461 [2011], affd 19 NY3d 881 [2012]; People v Burgos, 90 AD3d1670, 1670-1671 [2011], lv denied 19 NY3d 862 [2012]; cf. People v Okongwu, 71AD3d 1393, 1395-1396 [2010]). The victim was examined by the prosecutionexpert nearly four years following the last incident of anal penetration, and the experttestified that the exam was normal. The expert further explained that, although the victimreported occasional bleeding following the incidents of anal penetration, she would notexpect to see scarring four years later because the area heals quickly. Oncross-examination, the expert confirmed that a normal exam would also be consistentwith the examination of a child who had not been subjected to anal penetration. Wetherefore conclude that trial counsel effectively cross-examined the People's expert andraised an area of possible doubt arising from her testimony (see Flores, 83 AD3dat 1461). Defendant's attorney stated in his affirmation that trial counsel explained to himthat she did not expect that the prosecution expert, who was not a treating physician butonly conducted a forensic examination of the victim, would be permitted to repeat theallegations (see People vBallerstein, 52 AD3d 1192, 1193 [2008]), and that she did not consult an expertinasmuch as the victim's examination was normal (cf. Okongwu, 71 AD3d at1395). We therefore conclude that defendant failed to establish the lack of a legitimateexplanation for trial counsel's failure to call a medical witness (see Burgos, 90AD3d at 1670). We conclude that trial counsel's explanations for the alleged deficienciesin her representation of defendant did not warrant a hearing on whether defendant wasdeprived of meaningful representation (cf. People v Zeh, 22 NY3d 1144, 1145-1146 [2014]). Wenote in addition that, in his affirmation, defendant's attorney provided citations tomedical literature, which purportedly explain that there are a variety of physicalmanifestations that may be detected upon the exam of a child who was subjected to analpenetration and that only a small percentage of children do not have any such physicalmanifestation. He contends, therefore, that trial counsel was ineffective in failing toconsult with, or call as a witness, an expert with respect to those potential physicalmanifestations of anal penetration. Defendant failed, however, to provide an expertaffidavit indicating that those physical manifestations may be present several yearsfollowing the last incident of abuse (cf. Gersten v Senkowski, 426 F3d 588,599-600 [2005], cert denied 547 US 1191 [2006]; see generally Burgos,90 AD3d at 1670-1671).
We conclude that the court properly denied the motion inasmuch as the recordestablishes that defendant was provided with meaningful representation (see generallyPeople v Baldi, 54 NY2d 137, 147 [1981]). Although we agree with defendant thatdefense counsel lacked any strategic or reasonable basis for her failure to object when theexpert witness repeated the specific allegations that defendant had anally penetrated her(cf. People v Spicola, 16NY3d 441, 451 [2011], cert denied 565 US &mdash, 132 S Ct 400 [2011];see generally People vOrtega, 15 NY3d 610, 618 [2010]), we nevertheless conclude that the singleerror in an otherwise competent representation was not so "egregious and prejudicial asto compromise [the] defendant's right to a fair trial" (People v Caban, 5 NY3d 143, 152 [2005]; cf. People v Turner, 5 NY3d476, 480-481 [2005]). Defense counsel made effective opening and closingstatements challenging the motivation and credibility of the victim; effectivelycross-examined the prosecution witnesses; and presented the testimony of severalwitnesses, including defendant, who contradicted specific details of the victim'stestimony.
All concur except Carni and Lindley, JJ., who dissent and vote to reverse inaccordance with the following memorandum.
Carni and Lindley, JJ. (dissenting). We respectfully dissent. In our view, defendantwas deprived of his right to effective assistance of counsel as a result of his trialattorney's failure to object to inadmissible testimony regarding numerous prior consistentstatements made by the victim. One of the prosecution witnesses who offeredinadmissible testimony was a pediatrician who examined the victim at the People'srequest in October 2008, when the victim was 14 years old and after defendant had beenindicted. The pediatrician testified that the victim told her that defendant "anallypenetrated" her with his penis when she was six and seven years old. Defendantchallenged the admissibility of that testimony on his direct appeal from the judgment ofconviction, but we concluded that his contention was not preserved for our review (People v Gross, 79 AD3d1660, 1662 [2010], lv denied 16 NY3d 895 [2011]).
In our view, the pediatrician's testimony impermissibly bolstered the victim's trialtestimony. The victim's statement to the pediatrician obviously does not constitute aprompt outcry, and the evidence was not offered by the People to rebut a claim of recentfabrication (see generally Peoplev Rosario, 17 NY3d 501, 512-513 [2011]). Moreover, and contrary to thePeople's contention, the victim's statements to the pediatrician were not necessary fordiagnosis and treatment inasmuch as the pediatrician provided no treatment to the victim(cf. People v Spicola, 16NY3d 441, 451 [2011], cert denied 565 US &mdash, 132 S Ct 400[2011]).
If defense counsel's failure to object to the pediatrician's testimony on the propergrounds were her only failing, perhaps it could be said that this single error was not so"egregious and prejudicial as to compromise [the] defendant's right to a fair trial" (People v Caban, 5 NY3d143, 152 [2005]; see Peoplev Turner, 5 NY3d 476, 480 [2005]). But defense counsel also failed to object to(1) the victim's testimony that, when she was five or six years old, she told her motherthat defendant was touching her sexually; (2) the victim's testimony that, on May 15,2008, she told her sister that defendant raped her; (3) the victim's testimony that, while inher principal's office on May 16, 2008, she told a detective the same thing that she toldthe jury, and that she then showed an investigator the location of the field where the"sexual abuse" occurred; and (4) the victim's testimony that she told the aforementionedpediatrician what happened with defendant, and that the pediatrician then examined hervagina and anus.
It is well settled that "the testimony of a witness may not be corroborated or bolsteredby evidence of prior consistent statements made before trial" (People v McClean,69 NY2d 426, 428 [1987]; see People v Buie, 86 NY2d 501, 509-511 [1995];People v McDaniel, 81 NY2d 10, 16 [1993]). The reason for the rule against theadmission of prior consistent statements is that "an untrustworthy statement is not mademore trustworthy by repetition" (McClean, 69 NY2d at 428; see People vSeit, 86 NY2d 92, 95 [1995]). As the Court of Appeals has reiterated, "the admissionof prior consistent statements may, by simple force of repetition, give to a jury anexaggerated idea of the probative force of a party's case" (People v Smith, 22 NY3d462, 466 [2013]). As noted, evidence of prior consistent statements alleging sexualabuse may be admitted under the prompt outcry rule or to rebut a claim of recentfabrication (see Rosario, 17 NY3d at 512-513), but neither exception to thegeneral rule applies to any of the above testimony, and we can discern no strategic reasonfor defense counsel's failure to object to the inadmissible evidence.
We note in addition that the victim's prior consistent statements—to hermother, her sister, the police, and the pediatrician—were relied upon heavily bythe prosecutor during his summation, without objection by defense counsel. Afterrecounting each prior consistent statement, the prosecutor argued in sum and substancethat, because the victim had told so many people on so many occasions that defendanthad raped her, she must be telling the truth. It is clear from the summation that thevictim's prior consistent statements were used by the People to establish the truth of thematters asserted therein, and not for any ancillary purpose.
We cannot agree with the majority that defendant has not specifically contended onappeal that defense counsel was ineffective for failing to object to the victim's testimonyregarding her prior consistent statements. In the factual portion of his brief, defendantsets forth each instance where the victim testified about consistent statements she madeprior to trial, noting that defense counsel did not object to any of the testimony. In theargument portion of his brief, defendant contends that the "failure of defense counsel totimely object to the repeated bolstering and testimony as to prior consistent statements ofthe complainant by seven of the eight prosecution witnesses" deprived defendant of hisright to effective assistance of counsel. Defendant then identifies by name the sevenprosecution witnesses who provided inadmissible bolstering testimony, and one of thosewitnesses is the victim. We thus conclude that the issue whether defense counsel wasineffective for failing to object to the victim's bolstering testimony is properly beforeus.
We also respectfully disagree with the majority that the prior consistent testimonyoffered by the victim was admissible because it constituted a narrative of events. Wefound no cases that recognize a narrative exception to the rule against the admission ofprior consistent statements, and such an exception, if created, would swallow the rulealtogether. Although testimony regarding out of court statements that complete thenarrative by "provid[ing] background information" does not constitute inadmissiblehearsay on the theory that such testimony is not offered for the truth of the mattersasserted (People v Tosca, 98 NY2d 660, 661 [2002]), the testimony at issue heredid not complete the narrative; instead, the testimony merely repeated the narrative,which was that defendant sexually molested the victim.
In any event, the motion court, in denying defendant's CPL 440.10 motion, did notrule that the prior consistent statements in question were admissible to explain thenarrative of events. The court determined that any "error was harmless" because thejurors "would expect that a witness alleging to be a victim in a sex abuse case wouldhave made some disclosures prior to trial," and because there may have been a strategicreason for defense counsel's failure to object to the testimony. Thus, in our view, wecannot affirm the instant order on the ground that the evidence was admissible in the firstinstance (see CPL 470.15 [1]; People v Concepcion, 17 NY3d 192, 196 [2011];People v LaFontaine, 92 NY2d 470, 474 [1998]).
We would therefore reverse the order denying defendant's CPL 440.10 motion andgrant him a new trial. Present—Scudder, P.J., Smith, Carni, Lindley and Whalen,JJ.