| People v Olson |
| 2018 NY Slip Op 04399 [162 AD3d 1249] |
| June 14, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Chad Olson, Appellant. |
Edelstein & Grossman, New York City (Jonathan I. Edelstein of counsel), forappellant.
D. Holley Carnright, District Attorney, Kingston (Carly Wolfrom of counsel), forrespondent.
Lynch, J.P. Appeal, by permission, from an order of the County Court of Ulster County(Williams, J.), entered July 9, 2016, which denied defendant's motion pursuant to CPL 440.10 tovacate the judgment convicting him of the crimes of course of sexual conduct against a child inthe second degree, sexual abuse in the first degree and endangering the welfare of a child (twocounts), after a hearing.
In 2013, this Court affirmed the judgment convicting defendant of the crimes of course ofsexual conduct against a child in the second degree, sexual abuse in the first degree and twocounts of endangering the welfare of a child committed against two child victims (110 AD3d1373, 1374 [2013], lv denied 23 NY3d 1023 [2014]). Defendant was sentenced to anaggregate prison term of 14 years followed by 10 years of postrelease supervision (id.). In2015, defendant moved, pursuant to CPL 440.10, to vacate his conviction, claiming, among otherthings, that his trial counsel was ineffective because he did not produce a qualified expertwitness. Following a hearing, County Court denied the motion. With this Court's permission,defendant now appeals.
An ineffective assistance of counsel claim under the NY Constitution will fail where "theevidence, the law, and the circumstances of a particular case, viewed in totality and as of the timeof the representation, reveal that the attorney provided meaningful representation" (People v Honghirun, 29 NY3d284, 289 [2017] [internal quotation marks and citation omitted]; see People v Rosario, 157 AD3d988, 993 [2018]). Under the US Constitution, a defendant's right to the [*2]effective assistance of counsel is violated where "(1) his or herattorney committed errors so egregious that he or she did not function as counsel within themeaning of the [US] Constitution, and (2) that counsel's deficient performance actuallyprejudiced the defendant" (People vGross, 26 NY3d 689, 693 [2016]; see Strickland v Washington, 466 US 668,687-688 [1984]). "[O]ur state standard offers greater protection than the federal test because,under our State Constitution, even in the absence of a reasonable probability of a differentoutcome, inadequacy of counsel will still warrant reversal whenever a defendant is deprived of afair trial" (People v Honghirun, 29 NY3d at 289 [internal quotation marks, ellipsis andcitation omitted]). "Because the test for attorney effectiveness is reasonable competence, notperfect representation, a reviewing court must avoid confusing true ineffectiveness with merelosing tactics and according undue significance to retrospective analysis" (People v Cassala, 130 AD3d 1252,1253-1254 [2015] [internal quotation marks and citations omitted], lv denied 27 NY3d994 [2016]).
In an affidavit supporting defendant's motion, trial counsel explained that, 10 days before thetrial, the People disclosed that they planned to call Don Lewittes, an expert forensic psychologist,to testify with regard to delayed disclosure of sexual abuse. At a pretrial conference, CountyCourt denied trial counsel's motion to preclude Lewittes' testimony or, alternatively, to adjournthe trial, and directed the People to provide defendant with a transcript of the testimony given byLewittes at a prior, similar trial. Further, trial counsel explained that his preferred expert, JohnYuille, was not available to testify, so he retained a forensic psychologist, Mark Janoson, withoutadequate time to "properly and effectively interview" him and that Janoson may have "hurt"defendant's case.
In further support of the motion, defendant submitted an affidavit by Yuille, who explainedthat he would have testified that children's responses to sexual abuse are "characterized by theirvariety rather than their commonality" and that "[n]o particular trait or behavior can be singledout as typical of sexually abused children." Further, Yuille would have rebutted Lewittes'testimony during cross-examination that Child Sexual Abuse Accomodation Syndrome(hereinafter CSAAS) was "five-sixths accepted" in the scientific community. Although Yuilleclaimed that he would have testified with "more authority" than Janoson, he did not assert thatJanoson's testimony was flawed.
The crux of defendant's appeal is that trial counsel was ineffective because he retained anexpert less qualified than the expert he could have retained had he anticipated that the Peoplewere going to call Lewittes. At the hearing, trial counsel recalled that once he learned that thePeople were going to present Lewittes' testimony, he contacted a number of expert forensicpsychologists. Trial counsel could not recall the discussion with Janoson in detail, but heconfirmed that he would not have retained Janoson if he had learned that he was not credentialedin the area of child sexual abuse. Trial counsel testified that he thought Janoson was not a goodwitness because he had "odd" mannerisms during his testimony and reiterated that he did notbelieve he had enough time to interview Janoson prior to trial.
We find that County Court properly denied defendant's motion. Initially, it is entirelyspeculative to claim that Yuille would have been available to testify if trial counsel had contactedhim earlier. The failure to call a particular witness will not necessarily establish a claim ofineffective assistance of counsel (seePeople v Mosley, 155 AD3d 1124, 1128 [2017], lv denied 31 NY3d 985[2018]). While defendant and trial counsel may not have been wholly satisfied with Janoson'sperformance, Janoson was, like Lewittes, a forensic psychologist who was able to offer testimonywith regard to typical and atypical behavior among sexually abused children. In addition, trialcounsel was adequately informed and prepared to question Janoson and Lewittes about howdifferent scenarios might affect the timing of a child's disclosure (compare People v [*3]Cassala, 130 AD3d at 1254).
Notably, during trial counsel's effective cross-examination, Lewittes conceded that allchildren are different and react differently to sexual abuse. Contrary to defendant's argument, thevalidity of CSAAS was not at issue during the trial (see People v Nicholson, 26 NY3d 813, 828 [2016]) nor didLewittes even mention CSAAS during his direct testimony. Although Lewittes did testify duringcross-examination that some aspects of CSAAS remained valid, he, like Yuille, confirmed thatbecause it was not universally accepted in the scientific community, he had not testified withregard to it in more than 10 years. As such, Yuille's testimony would not have contradicted oradded to the trial evidence, and we cannot conclude that trial counsel's failure to call Yuilledeprived defendant of a fair trial (see People v Hobot, 84 NY2d 1021, 1024 [1995]; People v Auleta, 82 AD3d 1417,1419-1420 [2011], lv denied 17 NY3d 813 [2011]). When "[we] view counsel'sperformance in its totality" without "second-guess[ing] counsel . . . or assess[ing][his] performance with the clarity of hindsight" (People v Nicholson, 26 NY3d at 831[internal quotation marks omitted]), we find that defendant received meaningful representation(see People v Medlin, 144 AD3d426, 427 [2016], lv denied 29 NY3d 999 [2017]; People v Beckingham, 116 AD3d 1298, 1300 [2014]).
Devine, Mulvey, Aarons and Pritzker, JJ., concur. Ordered that the order is affirmed.