| People v Jones |
| 2017 NY Slip Op 01096 [147 AD3d 1521] |
| February 10, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v Eric B.Jones, Also Known as Erican Jones, Appellant. |
Muldoon, Getz & Reston, Rochester (Gary Muldoon of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Vincent M. Dinolfo, J.), renderedAugust 30, 2012. The judgment convicted defendant, upon a jury verdict, of course of sexualconduct against a child in the second degree (two counts) and sexual abuse in the seconddegree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofsexual abuse in the second degree (Penal Law § 130.60 [2]) and two counts ofcourse of sexual conduct against a child in the second degree (§ 130.80 [1] [b]).Defendant's conviction arose from his alleged abuse of his girlfriend's daughter and anotherunderage girl.
We reject defendant's contention that he was denied effective assistance of counsel.With respect to defense counsel's failure to obtain an expert witness, defendant failed to showthat such testimony was available and that it "would have assisted the jury in its determination orthat he was prejudiced by its absence" (People v Smith, 126 AD3d 1528, 1530-1531 [2015], lvdenied 26 NY3d 1150 [2016] [internal quotation marks omitted]). With respect to defensecounsel's failure to make a specific motion for a trial order of dismissal, we conclude that such amotion would have had little or no chance of success (see People v Stultz, 2 NY3d 277, 287 [2004], rearg denied3 NY3d 702 [2004]; People vHorton, 79 AD3d 1614, 1616 [2010], lv denied 16 NY3d 859 [2011]), and wenote that defendant has not challenged the legal sufficiency of the evidence on appeal. To theextent that defendant's contention is based upon off-the-record communications betweendefendant and counsel, it is properly the subject of a CPL article 440 motion (see People v Weaver, 118 AD3d1270, 1272 [2014], lv denied 24 NY3d 965 [2014]). With respect to the remaininginstances of alleged ineffectiveness, defendant failed " 'to demonstrate the absence ofstrategic or other legitimate explanations' for counsel's alleged shortcomings" (People vBenevento, 91 NY2d 708, 712 [1998]; see People v Bank, 129 AD3d 1445, 1447 [2015], affd 28NY3d 131 [2016]). Viewing the evidence, the law, and the circumstances of this case, in totalityand as of the time of the representation, we conclude that defense counsel provided defendantwith meaningful representation (see generally People v Baldi, 54 NY2d 137, 147[1981]).We reject defendant's further contention that County Court abused its discretion in limitinghis cross-examination of his girlfriend's daughter. Contrary to defendant's contention, the recordestablishes that the court's ruling was not based on the Rape Shield Law (CPL 60.42) but, rather,it was based on the relevance of the proposed testimony. "In determining issues of relevancy ofevidence, trial courts possess latitude to admit or preclude evidence based on their analysis of itsprobative value against the danger that it will confuse the main issues, cause unfair prejudice tothe other side or be cumulative" (Peoplev Halter, 19 NY3d 1046, 1051 [2012]). Here, the court allowed defendant tocross-examine his girlfriend's daughter concerning his role in disciplining her and some of heralleged underlying misbehavior, and the court precluded defendant from questioning her aboutother, more serious, alleged misbehavior, which defendant's trial counsel conceded wasirrelevant. Given the slight probative value of the proposed testimony and its potential to confusethe issues at trial, we cannot conclude that the court's ruling constituted an abuse of discretion(see generally id.). Present—Whalen, P.J., Centra, DeJoseph, NeMoyer andTroutman, JJ.