| People v Maxey |
| 2015 NY Slip Op 05357 [129 AD3d 1664] |
| June 19, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vJoseph Maxey, Jr., Appellant. |
Tyson Blue, Macedon, for defendant-appellant.
Joseph Maxey, Jr., defendant-appellant pro se.
Richard M. Healy, District Attorney, Lyons (Wendy Evans Lehmann of counsel), forrespondent.
Appeal from a judgment of the Wayne County Court (Dennis M. Kehoe, J.),rendered July 11, 2013. The judgment convicted defendant, upon a jury verdict, ofpredatory sexual assault against a child, rape in the third degree (six counts), rape in thesecond degree (two counts), and endangering the welfare of a child (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 predatory sexual assault against a child (Penal Law § 130.96),six counts of rape in the third degree (§ 130.25 [2]), two counts of rape inthe second degree (§ 130.30 [1]), and two counts of endangering thewelfare of a child (§ 260.10 [1]) in connection with offenses committedagainst his three stepdaughters over a 4
We reject defendant's further contention that he was denied effective assistance ofcounsel based upon the failure of defense counsel to obtain an expert witness to rebut thetestimony of the prosecution's expert witness regarding child sexual abuseaccommodation syndrome. Defendant has failed to establish the absence of any strategicor other legitimate explanation for the failure of defense counsel to call an expert (see generally People v Caban,5 NY3d 143, 152 [2005]). Defendant has failed to demonstrate that such experttestimony was available, that it would have assisted the jury, or that he was prejudiced bythe lack of such testimony (see Washington, 122 AD3d at 1407), especially inlight of defense counsel's vigorous cross-examination of the People's expert witness. Wereject defendant's additional contention in his pro se supplemental brief that he wasdenied effective assistance of counsel based upon defense [*2]counsel's failure to admit in evidence records ofinvestigations of unfounded allegations of sexual abuse by Child Protective Services.The court properly determined that those records were not admissible (see SocialServices Law § 422 [5] [b]), and properly sustained the People's objectionto hearsay testimony of the caseworker called to testify on defendant's behalf that thevictims had denied allegations of sexual abuse. In any event, we note that defensecounsel cross-examined the eldest victim with respect to her prior denials to caseworkersand police that defendant was sexually abusing her. We conclude that defendant receivedmeaningful representation (see generally People v Baldi, 54 NY2d 137, 147[1981]).
Defense counsel made only one objection during the prosecutor's summation andthus has failed to preserve for our review his contention regarding two of the threestatements that defendant now alleges constituted prosecutorial misconduct onsummation (see People vJohnson, 121 AD3d 1578, 1579 [2014]). In any event, we conclude thatdefendant's contention that alleged prosecutorial misconduct on summation deprived himof a fair trial is without merit. The prosecutor's remarks were a permissive response to thedefense summation (see Peoplev Walker, 117 AD3d 1441, 1441-1442 [2014], lv denied 23 NY3d 1044[2014]), and "did not exceed the bounds of legitimate advocacy" (People v Miller, 104 AD3d1223, 1224 [2013], lv denied 21 NY3d 1017 [2013] [internal quotationmarks omitted]). Present—Scudder, P.J., Smith, Sconiers, Valentino andDeJoseph, JJ.