| People v Mirabella |
| 2015 NY Slip Op 02302 [126 AD3d 1367] |
| March 20, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vTodd C. Mirabella, Appellant. |
Easton Thompson Kasperek Shiffrin LLP, Rochester (Brian Shiffrin of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Robert J. Shoemaker of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Thomas E. Moran,J.), rendered January 6, 2014. The judgment convicted defendant, upon a jury verdict, ofsexual abuse in the first degree (two counts), criminal sexual act in the first degree, andsexual abuse in the third degree (two counts).
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of two counts of sexual abuse in the first degree (Penal Law§ 130.65 [4]), one count of criminal sexual act in the first degree(§ 130.50 [4]), and two counts of sexual abuse in the third degree(§ 130.55). Viewing the evidence in light of the elements of the crimes ascharged to the jury (see People vDanielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict is not againstthe weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495[1987]). We note that "[r]esolution of issues of credibility, as well as the weight to beaccorded to the evidence presented, are primarily questions to be determined by the jury"(People v Witherspoon, 66AD3d 1456, 1457 [2009], lv denied 13 NY3d 942 [2010] [internal quotationmarks omitted]), and we perceive no reason to disturb the jury's resolution of thosequestions in this case.
We reject defendant's contention that he received ineffective assistance of counsel.Defendant contends that defense counsel should have objected when a physician whoexamined one of the complainants testified that the complainant had told him that therewas "digital/genital contact as well as oral/genital" contact. Defendant contends that thisconstituted impermissible bolstering. We conclude that the testimony was permissible asan exception to the hearsay rule for statements relevant to diagnosis and treatment (see People v Spicola, 16 NY3d441, 451-453 [2011], cert denied 565 US &mdash, 132 S Ct 400 [2011]). Inaddition, the physician's testimony served the nonhearsay purpose of "round[ing] out thenarrative of the immediate aftermath of the . . . disclosure" (id. at453; see People v Ludwig,24 NY3d 221, 231-232 [2014]). Inasmuch as the testimony was proper, defensecounsel was not ineffective for failing to object to it (see People v Caban, 5 NY3d 143, 152 [2005]; People v Goley, 113 AD3d1083, 1085 [2014]; Peoplev Dashnaw, 37 AD3d 860, 863 [2007], lv denied 8 NY3d 945[2007]).
Defense counsel also was not ineffective for failing to seek a missing witness chargewith respect to two witnesses, because "[t]here was no indication that the witness[es]would have provided noncumulative testimony favorable to the People" (People v Smith, 118 AD3d1492, 1493 [2014]; seePeople v Myers, 87 AD3d 826, 828 [2011], lv denied 17 NY3d 954[2011]). Defendant has failed to demonstrate " 'the absence of strategic or otherlegitimate explanations' " for defense counsel's failure to object to testimony thatviolated defendant's right of confrontation inasmuch as that testimony was favorable todefendant (Caban, 5 NY3d at 152; see People v Reid, 71 AD3d 699, 700 [2010], lvdenied 15 NY3d 756 [2010]). The prosecutor's "statements that the complainant[s]had no motive to lie constituted a fair response to defense counsel's summation, whichattacked the [*2]complainant[s'] credibility," and thusdefense counsel was not ineffective for failing to object to those remarks on summation(People v Marcus, 112AD3d 652, 653 [2013], lv denied 22 NY3d 1140 [2014]; see People v Hill, 82 AD3d1715, 1716 [2011], lv denied 17 NY3d 806 [2011]). We have considereddefendant's remaining instances of alleged ineffective assistance of counsel and concludethat they are without merit. Viewing the evidence, the law, and the circumstances of thiscase in totality and as of the time of the representation, we conclude that defense counselprovided meaningful representation (see generally People v Baldi, 54 NY2d 137,147 [1981]).
We reject defendant's further contention that the court erred in denying his requestfor the complainants' school and therapy records without first conducting an in camerareview of those records. Defendant had the burden of showing that those records "arerelevant and material to facts at issue" (People v Kozlowski, 11 NY3d 223, 242 [2008], reargdenied 11 NY3d 904 [2009], cert denied 556 US 1282 [2009]). "The relevantand material facts in a criminal trial are those bearing upon 'the unreliability of either thecriminal charge or of a witness upon whose testimony it depends' " (id.).Here, defendant failed to meet his burden. He failed to "point to specific factsdemonstrating a reasonable likelihood that such material may be disclosed" and insteadwas merely "engaged in a fishing expedition" (id.; see People vGissendanner, 48 NY2d 543, 549-550 [1979]). Finally, the sentence is not undulyharsh or severe. Present—Scudder, P.J., Centra, Peradotto, Lindley and Whalen,JJ.