Opinion
2014-11-21
The PEOPLE of the State of New York, Respondent, v. James H. WASHINGTON, Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Karen C. Russo–McLaughlin of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (Matthew B. Powers of Counsel), for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Karen C. Russo–McLaughlin of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (Matthew B. Powers of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., SMITH, PERADOTTO, CARNI, and SCONIERS, JJ.
MEMORANDUM:
On appeal from a judgment convicting him upon a jury verdict of course of sexual conduct against a child in the first degree (Penal Law § 130.75[1][b] ) and criminal sexual act in the second degree (§ 130.45[1] ), defendant contends that he was denied effective assistance of counsel. We reject that contention. Contrary to defendant's contention, we conclude that “it is apparent from [defense counsel's] thorough cross-examination of prosecution witnesses and his overall performance that [he] had adequately prepared for trial” (People v. Adair, 84 A.D.3d 1752, 1754, 922 N.Y.S.2d 696, lv. denied17 N.Y.3d 812, 929 N.Y.S.2d 801, 954 N.E.2d 92; see People v. Miller, 96 A.D.3d 1451, 1452, 946 N.Y.S.2d 742, lv. denied19 N.Y.3d 999, 951 N.Y.S.2d 475, 975 N.E.2d 921; People v. Arroyo, 77 A.D.3d 446, 448, 908 N.Y.S.2d 665, lv. denied16 N.Y.3d 741, 917 N.Y.S.2d 623, 942 N.E.2d 1048). To the extent that defendant's claim of ineffectiveness is based upon defense counsel's alleged failure to consult experts, it involves matters outside the record on appeal and must therefore be raised by way of a motion pursuant to CPL article 440 or an application seeking other postconviction relief ( see People v. Ocasio, 81 A.D.3d 1469, 1470, 917 N.Y.S.2d 803, lv. denied16 N.Y.3d 898, 926 N.Y.S.2d 33, 949 N.E.2d 981, cert. denied ––– U.S. ––––, 132 S.Ct. 318, 181 L.Ed.2d 196). We conclude that defense counsel was not ineffective in failing to call an expert witness to testify on the subject of child sexual abuse accommodation syndrome ( see People v. Nicholson, 118 A.D.3d 1423, 1425, 988 N.Y.S.2d 765; People v. Green, 108 A.D.3d 782, 786, 968 N.Y.S.2d 685, lv. denied21 N.Y.3d 1074, 974 N.Y.S.2d 323, 997 N.E.2d 148; People v. Kilbury, 83 A.D.3d 1579, 1580, 921 N.Y.S.2d 432, lv. denied17 N.Y.3d 860, 932 N.Y.S.2d 25, 956 N.E.2d 806). “ ‘Defendant has not demonstrated that such testimony was available, that it would have assisted the jury in its determination or that he was prejudiced by its absence’ ” (Kilbury, 83 A.D.3d at 1580, 921 N.Y.S.2d 432; see People v. Drennan, 81 A.D.3d 1279, 1280–1281, 916 N.Y.S.2d 443, lv. denied16 N.Y.3d 858, 923 N.Y.S.2d 420, 947 N.E.2d 1199, reconsideration denied17 N.Y.3d 816, 929 N.Y.S.2d 804, 954 N.E.2d 95). We likewise conclude that defense counsel was not ineffective in failing to retain a medical expert to counter the testimony provided by the People's expert ( see People v. Nelson, 94 A.D.3d 1426, 1426, 942 N.Y.S.2d 821, lv. denied19 N.Y.3d 999, 951 N.Y.S.2d 475, 975 N.E.2d 921; People v. Burgos, 90 A.D.3d 1670, 1670–1671, 937 N.Y.S.2d 483, lv. denied19 N.Y.3d 862, 947 N.Y.S.2d 411, 970 N.E.2d 434; see also People v. Flores, 83 A.D.3d 1460, 1461, 919 N.Y.S.2d 747, affd.19 N.Y.3d 881, 948 N.Y.S.2d 575, 971 N.E.2d 856). Inasmuch as “the People's medical expert testified that there were no physical signs of sexual abuse, which defense counsel carefully highlighted on cross-examination, defense counsel's failure to unnecessarily call a rebuttal medical expert did not constitute ineffective assistance” (Green, 108 A.D.3d at 786, 968 N.Y.S.2d 685).
We reject defendant's further contention that he was denied effective assistance of counsel because defense counsel failed to object to leading questions posed to the victim by the prosecutor. Defendant “did not meet his burden of establishing the absence of any legitimate explanations for that failure” (People v. Madison, 106 A.D.3d 1490, 1492, 964 N.Y.S.2d 820 [internal quotation marks omitted]; see People v. Benevento, 91 N.Y.2d 708, 712–713, 674 N.Y.S.2d 629, 697 N.E.2d 584; People v. Morrison, 48 A.D.3d 1044, 1045, 852 N.Y.S.2d 495, lv. denied10 N.Y.3d 867, 860 N.Y.S.2d 494, 890 N.E.2d 257). Although we agree with defendant that certain remarks made by the prosecutor on summation were improper ( see People v. Cordero, 110 A.D.3d 1468, 1470, 972 N.Y.S.2d 787, lv. denied22 N.Y.3d 1137, 983 N.Y.S.2d 496, 6 N.E.3d 615; People v. Benedetto, 294 A.D.2d 958, 959–960, 744 N.Y.S.2d 92; People v. Dworakowski, 208 A.D.2d 1129, 1130, 617 N.Y.S.2d 965, lv. denied84 N.Y.2d 1031, 623 N.Y.S.2d 187, 647 N.E.2d 459), we conclude that they were “not so pervasive or egregious as to deprive defendant of a fair trial” (People v. Johnson, 303 A.D.2d 967, 968, 759 N.Y.S.2d 260, lv. denied100 N.Y.2d 583, 764 N.Y.S.2d 393, 796 N.E.2d 485 [internal quotation marks omitted]; see People v. Willis, 79 A.D.3d 1739, 1741, 917 N.Y.S.2d 788, lv. denied16 N.Y.3d 864, 923 N.Y.S.2d 426, 947 N.E.2d 1205). Thus, defense counsel's failure to object to the allegedly improper comments did not constitute ineffective assistance of counsel ( see People v. Koonce, 111 A.D.3d 1277, 1278–1279, 974 N.Y.S.2d 207). We have examined defendant's remaining allegations of ineffective assistance of counsel and conclude that they lack merit ( see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).
We also reject defendant's contention that County Court abused its discretion in its Molineux ruling. It is well established that “[e]vidence of a defendant's prior bad acts may be admissible when it is relevant to a material issue in the case other than defendant's criminal propensity” (People v. Dorm, 12 N.Y.3d 16, 19, 874 N.Y.S.2d 866, 903 N.E.2d 263). Here, the victim's testimony concerning uncharged acts of sexual abuse that preceded the events charged in the indictment was properly admitted “to complete the narrative of the events charged in the indictment ..., and [to] provide[ ] necessary background information” (People v. Workman, 56 A.D.3d 1155, 1156, 868 N.Y.S.2d 430, lv. denied12 N.Y.3d 789, 879 N.Y.S.2d 66, 906 N.E.2d 1100 [internal quotation marks omitted]; see People v. Griffin, 111 A.D.3d 1413, 1414–1415, 975 N.Y.S.2d 306, lv. denied23 N.Y.3d 1037, 993 N.Y.S.2d 250, 17 N.E.3d 505; People v. Justice, 99 A.D.3d 1213, 1215, 951 N.Y.S.2d 802, lv. denied20 N.Y.3d 1012, 960 N.Y.S.2d 355, 984 N.E.2d 330). Contrary to defendant's contention, the probative value of the evidence was not outweighed by its prejudicial effect, and the court's limiting instruction minimized any prejudice to defendant ( see Griffin, 111 A.D.3d at 1415, 975 N.Y.S.2d 306; Workman, 56 A.D.3d at 1157, 868 N.Y.S.2d 430).
Finally, the sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.