| People v Washington |
| 2014 NY Slip Op 08175 [122 AD3d 1406] |
| November 21, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vJames H. Washington, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Karen C. Russo-McLaughlin ofcounsel), for defendant-appellant.
Frank A. Sedita, III, District Attorney, Buffalo (Matthew B. Powers of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Kenneth F. Case, J.), renderedDecember 19, 2012. The judgment convicted defendant, upon a jury verdict, of course ofsexual conduct against a child in the first degree and criminal sexual act in the seconddegree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict ofcourse of sexual conduct against a child in the first degree (Penal Law§ 130.75 [1] [b]) and criminal sexual act in the second degree(§ 130.45 [1]), defendant contends that he was denied effective assistanceof counsel. We reject that contention. Contrary to defendant's contention, we concludethat "it is apparent from [defense counsel's] thorough cross-examination of prosecutionwitnesses and his overall performance that [he] had adequately prepared for trial" (People v Adair, 84 AD3d1752, 1754 [2011], lv denied 17 NY3d 812 [2011]; see People v Miller, 96 AD3d1451, 1452 [2012], lv denied 19 NY3d 999 [2012]; People v Arroyo, 77 AD3d446, 448 [2010], lv denied 16 NY3d 741 [2011]). To the extent thatdefendant's claim of ineffectiveness is based upon defense counsel's alleged failure toconsult experts, it involves matters outside the record on appeal and must therefore beraised by way of a motion pursuant to CPL article 440 or an application seeking otherpost-conviction relief (seePeople v Ocasio, 81 AD3d 1469, 1470 [2011], lv denied 16 NY3d 898[2011], cert denied 565 US &mdash, 132 S Ct 318 [2011]). We conclude thatdefense counsel was not ineffective in failing to call an expert witness to testify on thesubject of child sexual abuse accommodation syndrome (see People v Nicholson, 118AD3d 1423, 1425 [2014];People v Green, 108 AD3d 782, 786 [2013], lv denied 21 NY3d 1074[2013]; People v Kilbury,83 AD3d 1579, 1580 [2011], lv denied 17 NY3d 860 [2011])." 'Defendant has not demonstrated that such testimony was available, that itwould have assisted the jury in its determination or that he was prejudiced by itsabsence' " (Kilbury, 83 AD3d at 1580; see People v Drennan, 81AD3d 1279, 1280-1281 [2011], lv denied 16 NY3d 858 [2011],reconsideration denied 17 NY3d 816 [2011]). We likewise conclude that defensecounsel was not ineffective in failing to retain a medical expert to counter the testimonyprovided by the People's expert (see People v Nelson, 94 AD3d 1426, 1426 [2012], lvdenied 19 NY3d 999 [2012]; People v Burgos, 90 AD3d 1670, 1670-1671 [2011], lvdenied 19 NY3d 862 [2012]; see also People v Flores, 83 AD3d 1460, 1461 [2011],affd 19 NY3d 881 [2012]). Inasmuch as "the People's medical expert testifiedthat there were no physical signs of sexual abuse, which defense counsel carefullyhighlighted on cross-examination, defense counsel's failure to unnecessarily call arebuttal medical expert did not constitute ineffective assistance" (Green, 108AD3d at 786).
We reject defendant's further contention that he was denied effective assistance ofcounsel because defense counsel failed to object to leading questions posed to the victimby the prosecutor. Defendant "did not meet his burden of establishing the absence of anylegitimate explanations for that failure" (People v Madison, 106 AD3d 1490, 1492 [2013] [internalquotation marks omitted]; see People v Benevento, 91 NY2d 708, 712-713[1998]; People v Morrison,48 AD3d 1044, 1045 [2008], lv denied 10 NY3d 867 [2008]). Although weagree with defendant that certain remarks [*2]made bythe prosecutor on summation were improper (see People v Cordero, 110 AD3d 1468, 1470 [2013], lvdenied 22 NY3d 1137 [2014]; People v Benedetto, 294 AD2d 958, 959-960[2002]; People v Dworakowski, 208 AD2d 1129, 1130 [1994], lv denied84 NY2d 1031 [1995]), we conclude that they were "not so pervasive or egregious as todeprive defendant of a fair trial" (People v Johnson, 303 AD2d 967, 968 [2003],lv denied 100 NY2d 583 [2003] [internal quotation marks omitted]; see People v Willis, 79 AD3d1739, 1741 [2010], lv denied 16 NY3d 864 [2011]). Thus, defense counsel'sfailure to object to the allegedly improper comments did not constitute ineffectiveassistance of counsel (seePeople v Koonce, 111 AD3d 1277, 1278-1279 [2013]). We have examineddefendant's remaining allegations of ineffective assistance of counsel and conclude thatthey lack merit (see generally People v Baldi, 54 NY2d 137, 147 [1981]).
We also reject defendant's contention that County Court abused its discretion in itsMolineux ruling. It is well established that "[e]vidence of a defendant's prior badacts may be admissible when it is relevant to a material issue in the case other thandefendant's criminal propensity" (People v Dorm, 12 NY3d 16, 19 [2009]). Here, the victim'stestimony concerning uncharged acts of sexual abuse that preceded the events charged inthe indictment was properly admitted "to complete the narrative of the events charged inthe indictment . . . , and [to] provide[ ] necessary background information"(People v Workman, 56AD3d 1155, 1156 [2008], lv denied 12 NY3d 789 [2009] [internal quotationmarks omitted]; see People vGriffin, 111 AD3d 1413, 1414-1415 [2013], lv denied 23 NY3d 1037[2014]; People v Justice, 99AD3d 1213, 1215 [2012], lv denied 20 NY3d 1012 [2013]). Contrary todefendant's contention, the probative value of the evidence was not outweighed by itsprejudicial effect, and the court's limiting instruction minimized any prejudice todefendant (see Griffin, 111 AD3d at 1415; Workman, 56 AD3d at1157).
Finally, the sentence is not unduly harsh or severe. Present—Scudder, P.J.,Smith, Peradotto, Carni and Sconiers, JJ.