Opinion
2015-06-19
The PEOPLE of the State of New York, Respondent, v. Joseph MAXEY, Jr., Defendant–Appellant.
Tyson Blue, Macedon, for Defendant–Appellant. Joseph Maxey, Jr., Defendant–Appellant Pro Se.
Tyson Blue, Macedon, for Defendant–Appellant. Joseph Maxey, Jr., Defendant–Appellant Pro Se.
Richard M. Healy, District Attorney, Lyons (Wendy Evans Lehmann of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., SMITH, SCONIERS, VALENTINO, AND DeJOSEPH, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him, upon a jury verdict, of predatory sexual assault against a child (Penal Law § 130.96), six counts of rape in the third degree (§ 130.25[2] ), two counts of rape in the second degree (§ 130.30[1] ), and two counts of endangering the welfare of a child (§ 260.10[1] ) in connection with offenses committed against his three stepdaughters over a 4 1/2–year period. Defendant failed to preserve for our review his contention that the People were permitted to “overload” their case with Molineux evidence ( see People v. Moore, 50 A.D.3d 926, 927, 854 N.Y.S.2d 782, lv. denied10 N.Y.3d 937, 862 N.Y.S.2d 344, 892 N.E.2d 410). In any event, defendant's contention is without merit. County Court permitted limited testimony regarding uncharged offenses, and that testimony was relevant to establish the nature of the relationship between defendant and the eldest victim ( see People v. Washington, 122 A.D.3d 1406, 1408, 997 N.Y.S.2d 194). The court also properly permitted evidence establishing that defendant is the father of that victim's child, who was conceived when the victim was 17 years old, inasmuch as it“ ‘placed the charged conduct in context’ ” (People v. Leeson, 12 N.Y.3d 823, 827, 880 N.Y.S.2d 895, 908 N.E.2d 885; see People v. Cullen, 110 A.D.3d 1474, 1475, 972 N.Y.S.2d 792, affd. 24 N.Y.3d 1014, 997 N.Y.S.2d 348, 21 N.E.3d 1009). Evidence of other noncriminal conduct provided background information with respect to the nature of the relationship between defendant and the victims ( see Cullen, 110 A.D.3d at 1475, 972 N.Y.S.2d 792), and provided information regarding the family dynamic, which explained why the victims delayed in reporting the abuse ( see 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 Molineux evidence outweighed the prejudicial effect, which was minimized by the court's repeated limiting instructions to the jury ( see Washington, 122 A.D.3d at 1408, 997 N.Y.S.2d 194).
We reject defendant's further contention that he was denied effective assistance of counsel based upon the failure of defense counsel to obtain an expert witness to rebut the testimony of the prosecution's expert witness regarding child sexual abuse accommodation syndrome. Defendant has failed to establish the absence of any strategic or other legitimate explanation for the failure of defense counsel to call an expert ( see generally People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213). Defendant has failed to demonstrate that such expert testimony was available, that it would have assisted the jury, or that he was prejudiced by the lack of such testimony ( see Washington, 122 A.D.3d at 1407, 997 N.Y.S.2d 194), especially in light of defense counsel's vigorous cross-examination of the People's expert witness. We reject defendant's additional contention in his pro se supplemental brief that he was denied effective assistance of counsel based upon defense counsel's failure to admit in evidence records of investigations of unfounded allegations of sexual abuse by Child Protective Services. The court properly determined that those records were not admissible ( seeSocial Services Law § 422[5][b] ), and properly sustained the People's objection to hearsay testimony of the caseworker called to testify on defendant's behalf that the victims had denied allegations of sexual abuse. In any event, we note that defense counsel cross-examined the eldest victim with respect to her prior denials to caseworkers and police that defendant was sexually abusing her. We conclude that defendant received meaningful representation ( see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).
Defense counsel made only one objection during the prosecutor's summation and thus has failed to preserve for our review his contention regarding two of the three statements that defendant now alleges constituted prosecutorial misconduct on summation ( see People v. Johnson, 121 A.D.3d 1578, 1579, 993 N.Y.S.2d 856). In any event, we conclude that defendant's contention that alleged prosecutorial misconduct on summation deprived him of a fair trial is without merit. The prosecutor's remarks were a permissive response to the defense summation ( see People v. Walker, 117 A.D.3d 1441, 1441–1442, 986 N.Y.S.2d 284, lv. denied23 N.Y.3d 1044, 993 N.Y.S.2d 258), and “did not exceed the bounds of legitimate advocacy” (People v. Miller, 104 A.D.3d 1223, 1224, 960 N.Y.S.2d 584, lv. denied21 N.Y.3d 1017, 971 N.Y.S.2d 500, 994 N.E.2d 396 [internal quotation marks omitted] ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.