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).
The court properly exercised its discretion in granting the People's Molineux application, inasmuch as the evidence that the People proposed to introduce at trial had substantial probative value with respect to issues other than criminal propensity, and the probative value of the evidence outweighed the danger of undue prejudice to defendant (see People v Cass, 18 NY3d 553, 560). The evidence of uncharged acts of physical and sexual abuse against the victim was relevant to complete the narrative and provide background information (see People v Dorm, 12 NY3d 16, 19; People v Washington, 122 AD3d 1406, 1408, lv denied 25 NY3d 1173). In addition, evidence concerning defendant's violent and threatening behavior was relevant to explain the victim's delay in disclosing the crimes charged, irrespective of whether the violence was directed against her (see People v Justice, 99 AD3d 1213, 1215, lv denied 20 NY3d 1012; People v Workman, 56 AD3d 1155, 1156-1157, lv denied 12 NY3d 789) or her siblings (see People v Rivers, 82 AD3d 1623, 1623, lv denied 17 NY3d 904; People v Bassett, 55 AD3d 1434, 1436, lv denied 11 NY3d 922). The court provided extensive and repeated limiting instructions with respect to the Molineux evidence that minimized the prejudice to defendant (see Washington, 122 AD3d at 1408; Rivers, 82 AD3d at 1623; cf. People v Westerling, 48 AD3d 965, 968).
The court properly exercised its discretion in granting the People's Molineux application, inasmuch as the evidence that the People proposed to introduce at trial had substantial probative value with respect to issues other than criminal propensity, and the probative value of the evidence outweighed the danger of undue prejudice to defendant (see People v. Cass, 18 N.Y.3d 553, 560, 942 N.Y.S.2d 416, 965 N.E.2d 918 ). The evidence of uncharged acts of physical and sexual abuse against the victim was relevant to complete the narrative and provide background information (see People v. Dorm, 12 N.Y.3d 16, 19, 874 N.Y.S.2d 866, 903 N.E.2d 263 ; People v. Washington, 122 A.D.3d 1406, 1408, 997 N.Y.S.2d 194, lv. denied 25 N.Y.3d 1173, 15 N.Y.S.3d 304, 36 N.E.3d 107 ). In addition, evidence concerning defendant's violent and threatening behavior was relevant to explain the victim's delay in disclosing the crimes charged, irrespective of whether the violence was directed against her (see People v. Justice, 99 A.D.3d 1213, 1215, 951 N.Y.S.2d 802, lv. denied 20 N.Y.3d 1012, 960 N.Y.S.2d 355, 984 N.E.2d 330 ; People v. Workman, 56 A.D.3d 1155, 1156–1157, 868 N.Y.S.2d 430, lv. denied 12 N.Y.3d 789, 879 N.Y.S.2d 66, 906 N.E.2d 1100 ) or her siblings (see People v. Rivers, 82 A.D.3d 1623, 1623, 918 N.Y.S.2d 921, lv. denied 17 N.Y.3d 904, 933 N.Y.S.2d 659, 957 N.E.2d 1163 ; People v. Bassett, 55 A.D.3d 1434, 1436, 866 N.Y.S.2d 473, lv. denied 11 N.Y.3d 922, 874 N.Y.S.2d 7, 902 N.E.2d 441 ).
Defendant further contends that defense counsel was ineffective for advising him to abscond on the ground that he would not receive a fair trial. The facts upon which that contention is based are outside of the record on appeal, and the contention “must therefore be raised by way of a motion pursuant to CPL article 440 or an application seeking other [postconviction] relief” (People v. Washington, 122 A.D.3d 1406, 1406, 997 N.Y.S.2d 194 ; see People v. Ocasio, 81 A.D.3d 1469, 1470, 917 N.Y.S.2d 803, lv. denied 16 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 reject defendant's further contention that defense counsel's failure to file a motion to set aside the verdict constitutes ineffective assistance of counsel inasmuch as defendant failed to “establish that the motion, if made, would have been successful” (People v. Peterson, 19 A.D.3d 1015, 1016, 796 N.Y.S.2d 796, lv. denied6 N.Y.3d 851, 816 N.Y.S.2d 757, 849 N.E.2d 980 ).
On the whole, "[t]he prosecutor's summation directed the jury's attention elsewhere — a circumstance that competent defense counsel should have sought to prevent" ( Fisher, 18 NY3d at 966). Juxtaposing Wright and Fisher with defendant's trial counsel's inactions here would appear to equal ineffective assistance of counsel ( see also People v Washington, 122 AD3d 1406, 1407 [4th Dept 2014], lv denied 25 NY3d 1173 [2014] [implying that defense counsel's failure to object to a pattern of improper comments in summation constitutes ineffective assistance of counsel]; People v Gottsche, 118 AD3d 1303, 1306-07 [4th Dept 2014], lv denied 24 NY23d 1084 [2014] [same]). Indeed, defendant's distinct awareness of her trial counsel's inactions in the face of virtually every instance of alleged prosecutorial misconduct in summation resounds between the lines of her brief.
Judge: Decision Reported Below: 4th Dept: 122 AD3d 1406 (Erie)
Contrary to defendant's contention, we conclude that County Court did not err in ruling that the People could present Molineux evidence that defendant was on probation when the handgun was recovered. Here, the evidence was "necessary in order to complete the narrative of the crime[s] charged" (People v Couser, 126 A.D.3d 1419, 1420 [4th Dept 2015], affd 28 N.Y.3d 368 [2016] [internal quotation marks omitted]; see People v Washington, 122 A.D.3d 1406, 1408 [4th Dept 2014], lv denied 25 N.Y.3d 1173 [2015]), and the court did not abuse its discretion in determining that the probative worth of the evidence on that matter outweighed the danger of unfair prejudice to defendant (see People v Redfield, 144 A.D.3d 1548, 1550 [4th Dept 2016], lv denied 28 N.Y.3d 1187 [2017]). We also reject defendant's contention that the court erred in refusing to grant a mistrial when the People played a portion of defendant's interrogation videotape that referred to the nature of his prior conviction in violation of the court's Molineux ruling.
[1–3] Contrary to defendant’s contention, we conclude that County Court did not err in ruling that the People could present Molineux evidence that defendant was on probation when the handgun was recovered. Here, the evidence was "necessary in order to complete the narrative of the crime[s] charged" (People v. Couser, 126 A.D.3d 1419, 1420, 5 N.Y.S.3d 787 [4th Dept. 2015], affd 28 N.Y.3d 368, 45 N.Y.S.3d 301, 68 N.E.3d 26 [2016] [internal quotation marks omitted]; see People v. Washington, 122 A.D.3d 1406, 1408, 997 N.Y.S.2d 194 [4th Dept. 2014], lv denied 25 N.Y.3d 1173, 15 N.Y.S.3d 304, 36 N.E.3d 107 [2015]), and the court did not abuse its discretion in determining that the probative worth of the evidence on that matter outweighed the danger of unfair prejudice to defendant (see People v. Redfield, 144 A.D.3d 1548, 1550, 41 N.Y.S.3d 632 [4th Dept. 2016], lv denied 28 N.Y.3d 1187, 52 N.Y.S.3d 714, 75 N.E.3d 106 [2017]). We also reject defendant’s contention that the court erred in refusing to grant a mistrial when the People played a portion of defendant’s interrogation videotape that referred to the nature of his prior conviction in violation of the court’s Molineux ruling.
We reject defendant's contention that he was deprived of a fair trial by County Court's Molineux ruling. We conclude that the testimony about defendant's prior uncharged acts of abuse against other family members, i.e., two of the victim's sisters, was properly admissible in evidence "for the purpose of completing the narrative and providing relevant background information of the family dynamic" ( People v. Elmore , 175 A.D.3d 1003, 1004, 107 N.Y.S.3d 252 [4th Dept. 2019], lv denied 34 N.Y.3d 1158, 120 N.Y.S.3d 277, 142 N.E.3d 1179 [2020] ; seePeople v. Washington , 122 A.D.3d 1406, 1408, 997 N.Y.S.2d 194 [4th Dept. 2014], lv denied 25 N.Y.3d 1173, 15 N.Y.S.3d 304, 36 N.E.3d 107 [2015] ). The record does not support the dissent's conclusions that the testimony of the victim's two sisters "provided no additional insights into the parties’ relationship" and "gave no context to explain defendant's conduct."
The People further point to the statement in trial counsel's affidavit that he chose not to pursue the defense of parental alienation, in part because he was concerned that such a defense would open the door to evidence about the mother's sexual abuse conviction. Although we are mindful that trial counsel's cross-examination of the People's experts touched on some of the issues raised by Schachter, and that counsel offered an explanation for choosing to pursue a different defense than the one for which Schachter now advocates, a defendant may establish that he or she was denied meaningful representation in connection with the failure to call an expert witness by "demonstrat[ing] that such testimony was available, that it would have assisted the jury in its determination or that he [or she] was prejudiced by its absence" ( People v. Washington, 122 A.D.3d 1406, 1407, 997 N.Y.S.2d 194 [4th Dept. 2014] [internal quotation marks and citation omitted], lv denied 25 N.Y.3d 1173, 15 N.Y.S.3d 304, 36 N.E.3d 107 [2015] ; accordPeople v. Sposito, 193 A.D.3d 1236, 1244, 147 N.Y.S.3d 195 [3d Dept. 2021, Colangelo, J., dissenting], affd 37 N.Y.3d 1149, 159 N.Y.S.3d 753, 180 N.E.3d 1053 [2022] ). We find that defendant has made a sufficient showing to warrant a hearing on the issue of whether trial counsel was ineffective for failing to call an expert witness to testify on the issues outlined by Schachter (seePeople v. Caldavado, 26 N.Y.3d 1034, 1036–1037, 22 N.Y.S.3d 159, 43 N.E.3d 369 [2015] ; People v. Buckley, 206 A.D.3d at 1471–1472, 170 N.Y.S.3d 378 ; People v. Mercado, 147 A.D.3d 613, 616, 48 N.Y.S.3d 81 [1st Dept. 2017] ; People v. Dombrowski, 87 A.D.3d 1267, 1268, 930 N.Y.S.2d 321 [4th Dept. 2011] )