| People v Ross |
| 2014 NY Slip Op 05562 [119 AD3d 964] |
| July 30, 2014 |
| Appellate Division, Second Department |
[*1]
| 1 The People of the State of New York,Respondent, v Anthony Ross, Appellant. |
Neal D. Futerfas, White Plains, N.Y., for appellant.
Janet DiFiore, District Attorney, White Plains, N.Y. (Laurie Sapakoff, StevenBender, and Richard Longworth Hecht of counsel), for respondent.
Appeals by the defendant, by permission, (1), as limited by his brief, from so muchof an order of the County Court, Westchester County (Colangelo, J.), dated April 12,2011, as, upon directing a hearing on that branch of his motion pursuant to CPL 440.10which was to vacate a judgment of the same court (R. Bellantoni, J.) rendered June 18,2007, convicting him of course of sexual conduct against a child in the first degree,incest, assault in the third degree, and endangering the welfare of a child, upon a juryverdict, on the grounds that he was deprived of the effective assistance of counsel as aresult of his attorney's alleged failure to consult with or present the testimony of expertwitnesses, in effect, otherwise denied the motion without a hearing, and (2) from anorder of the same court (Colangelo, J.) dated November 30, 2011, which, after a hearing,denied that branch of his motion which was to vacate the judgment on the ground that hewas deprived of the effective assistance of counsel as a result of his attorney's allegedfailure to consult with or present the testimony of expert witnesses at trial.
Ordered that the order dated April 12, 2011, is affirmed insofar as appealed from;and it is further,
Ordered that the order dated November 30, 2011, is affirmed.
The defendant was convicted of certain crimes in connection with, inter alia, thesexual abuse of his five-year-old daughter. He moved pursuant to CPL 440.10 to vacatethe judgment of conviction on the ground, among others, that his trial counsel providedineffective assistance by failing to consult with or present the testimony of medical andpsychological experts to contradict the testimony of the People's experts at trial and todispute the testimony of the child complainant. By order dated April 12, 2011, theCounty Court directed a hearing on that branch of the motion which was based on trialcounsel's preparation for trial with respect to expert witnesses and, in effect, otherwisedenied the motion without a hearing.
At the hearing, trial counsel testified that he requested and received public funding inthe amount of $1,000 to retain experts and a private investigator. However, this sumproved insufficient to obtain the opinions or the appearances of experts. Trial counselthen requested that he be relieved and that assigned counsel be appointed to represent thedefendant. The defendant [*2]objected, assuring trialcounsel that the necessary funds would be available; however, the defendant failed toprovide the additional funds. Consequently, trial counsel pursued a strategy that focusedon denial of the accusations and impeachment of witnesses. To this end, trial counselconducted an effective cross-examination of the complainant, as well as of theprosecutor's medical and psychological experts. He was successful in getting thecomplainant to recant critical aspects of her testimony regarding genital contact betweenherself and the defendant, a necessary element of the charges of course of sexual conductagainst a child in the first degree and incest. He also elicited from the medical expert thatshe could not determine whether an alleged asymmetry in the border of the complainant'shymen was caused by penile penetration or was the result of one or more acts ofpenetration, which was a necessary element of the charge of course of sexual conductagainst a child in the first degree. Trial counsel also elicited from the psychologicalexpert that she mostly testified on behalf of the prosecution, that child allegations ofsexual abuse are unreliable when made in response to suggestive questioning, and thatthis most often occurs, as here, against the background of a dispute over custody andvisitation. By order dated November 30, 2011, the County Court denied that branch ofthe defendant's CPL 440.10 motion which was based on trial counsel's preparation fortrial with respect to expert witnesses.
Based on the totality of the circumstances, the County Court properly found thatthere were legitimate reasons that trial counsel did not present expert testimony and,instead, challenged the People's evidence through cross-examination (cf. Hinton vAlabama, 571 US &mdash, &mdash, 134 S Ct 1081, 1089 [2014]; Harrington vRichter, 562 US 86, &mdash, 131 S Ct 770, 789 [2011]; People v Okongwu, 71 AD3d1393, 1395-1396 [2010]).
Further, contrary to the defendant's remaining contentions, viewing trial counsel'sperformance in totality, he provided meaningful representation (see People vBenn, 68 NY2d 941, 942 [1986]; People v Aiken, 45 NY2d 394, 400 [1978];People v Myers, 117 AD3d755 [2014]). Skelos, J.P., Chambers, Lott and Duffy, JJ., concur.