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TRIAL COURT DID NOT, AS PROMISED, INSTRUCT THE JURY ON THE PURPOSES OF INTRODUCING HEARSAY EVIDENCE OF THE CHILD-VICTIM’S DISCLOSURES OF SEXUAL ASSAULT AND DEFENSE COUNSEL DID NOT OBJECT; THE MAJORITY CONCLUDED THE ISSUE WAS NOT PRESERVED FOR APPEAL; TWO DISSENTERS ARGUED THE ERROR WAS REVERSIBLE AND DEFENSE COUNSEL WAS INEFFECTIVE FOR NOT OBJECTING (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined that any error in the trial court’s failure to instruct the jury on the purposes for the introductions of evidence of the child-victim’s disclosure of sexual assault in 2009 and in 2014, evidence which would otherwise be inadmissible bolstering, was not preserved. The dissenters argued that the error was reversible and defense counsel’s failure to object constituted ineffective assistance:

From the dissent:

Prior to trial, the People moved in limine for permission to introduce evidence that the victim reported an incident of sexual contact with defendant to her aunt in 2009, and that she again disclosed the incident in 2014. The court concluded that the People could introduce evidence that the victim made a prompt complaint in 2009 if they laid a proper foundation establishing that the complaint was made at the first suitable opportunity, and that they could introduce evidence that the victim reported the contact in 2014 for the sole purpose of establishing how the investigative process began at that time. The court indicated that it would provide an appropriate limiting instruction if the evidence was introduced.

At trial, the People introduced evidence that the victim reported the sexual contact to her aunt in 2009 and to several other people at various times in 2014 and 2015. Nevertheless, the court did not give a limiting instruction either when the testimony was given or at the end of the case. Although we agree with the majority that defendant failed to preserve for our review his contention that the court erred in failing to give the promised charge, we conclude that defendant was deprived of a fair trial by that error, and we would exercise our power to review that contention as a matter of discretion in the interest of justice. * * *

… [Defendant] was deprived of effective assistance by his attorney’s failure to object the court’s failure to give the promised limiting instruction. The majority concludes that defense counsel’s failure to preserve that issue does not rise to the level of ineffective assistance, citing People v Gross(26 NY3d 689, 696 [2016]). We respectfully disagree. In Gross, the majority of the Court of Appeals concluded that defense counsel may not have objected to the prosecutor’s comments on the evidence for tactical reasons. Here, there was no possible tactical basis for “defense counsel’s inexplicable failure to object” when the court failed to give the promised limiting instruction … . People v Hymes, 2019 NY Slip Op 05441, Fourth Dept 7-5-19

 

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