| People v Gokey |
| 2015 NY Slip Op 09139 [134 AD3d 1246] |
| December 10, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vDonald J. Gokey, Appellant. |
Mirriam Z. Seddiq, Greenbelt, Maryland, for appellant.
Glenn MacNeill, Acting District Attorney, Malone (Jennifer M. Hollis of counsel),for respondent.
Clark, J. Appeal from a judgment of the County Court of Franklin County (Rogers,J.), rendered March 6, 2013, upon a verdict convicting defendant of the crimes of rape inthe first degree (four counts), criminal sexual act in the first degree (five counts) andendangering the welfare of a child (four counts).
Based upon allegations that he raped and engaged in oral sexual conduct with a 12year old on four separate occasions between January 2011 and March 2011, defendantwas indicted in May 2011 for the crimes of rape in the first degree (four counts), criminalsexual act in the first degree (six counts) and endangering the welfare of a child (fourcounts). Following a trial, defendant was found guilty of all of the charges in theindictment with the exception of one count of criminal sexual act in the first degree,which the People withdrew. County Court thereafter sentenced defendant to an aggregateprison term of 40 years to be followed by 20 years of postrelease supervision. Defendantnow appeals and we affirm.
Initially, despite his argument to the contrary, we find that defendant was affordedthe effective assistance of counsel. "The effectiveness of the assistance of counsel isanalyzed in terms of whether 'the evidence, the law, and the circumstances of a particularcase, viewed in totality and as of the time of the representation, reveal that the attorneyprovided meaningful representation' " (People v Cassala, 130 AD3d 1252, 1253 [2015], quotingPeople v Baldi, 54 NY2d 137, 147 [1981]; accord People v Benevento,91 NY2d 708, 712 [1998]). To prevail on [*2]such aclaim, a defendant "must demonstrate that [he or she was] deprived of a fair trial by lessthan meaningful representation; a simple disagreement with strategies, tactics or thescope of possible cross-examination, weighed long after the trial, does not suffice"(People v Flores, 84 NY2d 184, 187 [1994]; see People v Rivera, 71NY2d 705, 708-709 [1988]). Meaningful representation is a flexible concept andrequires only that counsel's efforts reflect "reasonable competence, not perfectrepresentation" (People vOathout, 21 NY3d 127, 128 [2013] [internal quotation marks and citationomitted]; accord People vChappelle, 126 AD3d 1127, 1129 [2015], lv denied 25 NY3d 1161[2015]).
As for the specifics of defendant's claim, he first argues that defense counsel erred infailing to object to the testimony offered by an expert witness regarding Child SexualAbuse Accommodation Syndrome (hereinafter CSAAS), explaining common reactionsof young women who have been sexually abused. It is well settled that expert testimonyregarding CSAAS is permissible in sexual abuse cases to more fully explain a victim'shesitancy to come forward regarding allegations of abuse, so long as the expert "has notmet the child in issue and does not offer an opinion regarding credibility or whetherabuse has occurred" (People vOlson, 110 AD3d 1373, 1376 [2013], lv denied 23 NY3d 1023 [2014];see People v Williams, 20NY3d 579, 585 [2013]; People v Spicola, 16 NY3d 441, 465-466 [2011]).Inasmuch as those requirements were met herein and the expert's statements did notexceed permissible bounds (see People v Spicola, 16 NY3d at 465-466), thistestimony was not impermissible as a matter of law. Moreover, to the extent thatdefendant flatly denied the victim's allegations and counsel cross-examined the victimregarding her allegations and her hesitancy to fully disclose the abuse to her medicalprovider, the defense opened the door to the expert testimony regarding CSAAS. Thus,counsel's failure to object to the expert's testimony did not constitute ineffectiveassistance, as any objection thereto would have "little or no chance of success" (People v Caban, 5 NY3d143, 152 [2005]; see Peoplev Maggio, 70 AD3d 1258, 1260-1261 [2010], lv denied 14 NY3d 889[2010]).
Further, we find that defendant did not demonstrate that his counsel's failure to callan expert witness to rebut the People's expert was not a strategic decision made in orderto avoid bringing undue attention to the victim's young age and vulnerability.Furthermore, we view counsel's thorough cross-examination of the expert witness as areflection of his vigorous representation of defendant (see e.g. People v Malcolm, 74AD3d 1483, 1487 [2010], lv denied 15 NY3d 954 [2010]). Thus, none ofdefendant's criticisms rise to the level of ineffective assistance of counsel. Taken as awhole, the record before us reveals that defendant was afforded meaningfulrepresentation throughout the duration of the proceedings (see People v Baldi, 54NY2d at 147; People v Malcolm, 74 AD3d at 1487; People v Black, 65 AD3d811, 815 [2009], lv denied 13 NY3d 905 [2009]).
Finally, notwithstanding his relatively minor criminal history, we reject defendant'scontention that his sentence was harsh and excessive. In light of the victim's young ageand vulnerability, defendant's exploitation of the trust that he had established with thevictim and her family and the far-reaching impact of defendant's crimes, we find noabuse of discretion or extraordinary circumstances warranting a reduction of his sentence(see People v Kamp, 129AD3d 1339, 1341 [2015], lv denied 26 NY3d 969 [2015]). Additionally, wediscern no evidence in the record that County Court improperly penalized defendant forrejecting the plea deals offered by the People and exercising his right to trial (see People v Cruz, 131 AD3d724, 728 [2015]; People v Simon, 180 AD2d 866, 867 [1992], lvdenied 80 NY2d 838 [1992]).
Defendant's remaining contentions, to the extent not specifically addressed herein,have been considered and found to be without merit.
[*3] Garry, J.P., Egan Jr. and Rose, JJ., concur. Orderedthat the judgment is affirmed.