| People v Rodriguez |
| 2018 NY Slip Op 02243 [159 AD3d 631] |
| March 29, 2018 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Nelson Rodriguez, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (Claudia Trupp of counsel), forappellant.
Cyrus R. Vance, Jr., District Attorney, New York (Elizabeth N. Krasnow of counsel), forrespondent.
Judgment, Supreme Court, New York County (Ronald A. Zweibel, J.), rendered December17, 2009, convicting defendant, after a jury trial, of course of sexual conduct against a child inthe first degree, and sentencing him to a term of 23 years, and order, same court and Justice,entered on or about December 1, 2016, which denied defendant's CPL 440.10 motion to vacatethe judgment, unanimously affirmed.
The court properly admitted evidence of uncharged sex offenses committed against thevictim's half sister. The victim's testimony that defendant (her father) told her about these actsagainst his stepdaughter tended to explain his daughter's delay in reporting defendant's regularsexual conduct with her over the course of four years, and to rebut the defense attack on hercredibility based on the delay (seePeople v Nicholson, 26 NY3d 813, 829 [2016]; People v Rosario, 34 AD3d 370, 370 [1st Dept 2006], lvdenied 8 NY3d 949 [2007]). The victim's half sister was also properly allowed to testifyabout this matter in order to corroborate the victim's testimony (see People v Morris, 21 NY3d588, 597 [2013]). The probative value of the challenged evidence outweighed anyprejudicial effect, which was minimized by the court's limiting instruction. Moreover, any errorin the court's ruling was harmless in light of the overwhelming evidence of guilt (see People vCrimmins, 36 NY2d 230, 242 [1975]).
The court properly denied defendant's CPL 440.10 motion alleging ineffective assistance ofcounsel. We find that counsel was effective under the federal and state standards (seeStrickland v Washington, 466 US 668 [1984]; People v Benevento, 91 NY2d 708[1998]). Defendant has not shown that any of counsel's alleged deficiencies fell below anobjective standard of reasonableness, or that, viewed individually or collectively, they depriveddefendant of a fair trial or affected the outcome of the case.
In his testimony at a hearing on the motion, counsel established that he reasonably chose notto cross-examine the victim about apparent inconsistencies concerning her allegations, to avoidthe risks of making a negative impression on the jury by questioning the young witness tooaggressively, or prompting an emotional reaction that could have enhanced the victim'scredibility in the jury's mind. Given that the People's medical expert conceded that anexamination of the victim did not reveal any physical signs of abuse, counsel's decision not tocall a medical expert did not constitute ineffective assistance of counsel (see People v Green, 108 AD3d782, 786 [3d Dept 2013], lv denied 21 NY3d 1074 [2013]; see also People v Medlin, 144 AD3d426, 427 [1st Dept 2016], lv denied 29 NY3d 999 [2017]). Counsel's decision to callcharacter witnesses, who resided in the same apartment building where defendant lived andworked, and where the incidents allegedly occurred, was based on a reasonable strategy ofseeking to cast defendant in a positive light and raise doubts about whether the alleged incidentsactually [*2]occurred. We also reject defendant's remainingarguments in support of his ineffectiveness claim.
We perceive no basis for reducing the sentence. Concur—Friedman, J.P., Tom,Kapnick, Singh, JJ.