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DEFENSE COUNSEL NOT INEFFECTIVE; EVIDENCE OF CHILD’S MULTIPLE DISCLOSURES OF SEX ABUSE WAS NOT BOLSTERING; DEFENSE COUNSEL ARTICULATED LEGITIMATE REASONS FOR NOT CALLING A MEDICAL EXPERT.

The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, over a dissent, determined defense counsel was not ineffective in a child sex abuse case.  The central issues concerned the evidence of the child’s disclosures of the alleged abuse to several people (including the People’s expert), the prosecutor’s emphasis on the multiple disclosures without objection, and defense counsel’s failure to call a medical expert. The Court of Appeals held defense counsel articulated arguably legitimate reasons for not calling an expert, and the evidence of multiple disclosures did not constitute bolstering, but rather was properly admitted as background information, fleshing out the investigation, and the People’s expert’s diagnosis:

In Ludwig [24 NY3d 221], we acknowledged that “New York courts have routinely recognized that ‘nonspecific testimony about [a] child-victim’s reports of sexual abuse [does] not constitute improper bolstering [when] offered for the relevant, nonhearsay purpose of explaining the investigative process'” and assisting in the completion of the narrative of events which led to the defendant’s arrest … . Here, the testimony of the child’s mother, sister, principal and the two officers fulfilled these legitimate nonhearsay purposes, and defense counsel’s objections to the testimony of the witnesses ensured that the witnesses did not specifically repeat what the child told them.

The majority of [the People’s medical expert’s] testimony as to the child’s specific allegations of sexual abuse was admissible under People v Spicola (16 NY3d 441 [2011]). In Spicola, we held that testimony of a nurse-practitioner concerning the child’s history of sexual abuse was permissible testimony because the child’s statements to the nurse-practitioner “were germane to diagnosis and treatment” and therefore “were properly admitted as an exception to the hearsay rule” (16 NY3d at 451). Applying Spicola here, the trial court properly admitted [the expert’s] testimony. The testimony explained why the child was being examined by [the expert] and why the normal results of the physical examination did not indicate that the child had not been subjected to sexual abuse. This background information completed the narrative and was properly permitted under the exception to the hearsay rule. Moreover, defense counsel lodged an objection to [the expert’s] testimony concerning the child’s history; however, that objection was overruled. Defense counsel can hardly be deemed ineffective on this score.

Trial counsel’s failure to request that a limiting instruction be given to the jury that the child’s testimony concerning the disclosures she made to other individuals should not be accepted for the truth of her allegations, does not render her ineffective in light of the totality of her representation of defendant … . Moreover, defense counsel was not ineffective for failing to object to the prosecutor’s summation comments referencing the testimony of the witnesses to whom the victim had disclosed. Despite the dissent’s argument to the contrary, the failure to object to the prosecutor’s statement on summation does not negate the overall meaningful representation provided to defendant by his counsel. Defense counsel zealously advocated for defendant, making multiple successful objections which limited the testimony of several prosecution witnesses. Additionally, defense counsel may have made a strategic choice not to object during summation given that the witnesses were not able to testify to the specifics of the child’s allegations … . She may have felt that such an objection would not be worthwhile given the limited testimony elicited from the witnesses. Such a strategic decision does not support a finding of ineffectiveness … . People v Gross, 2016 NY Slip Op 01204, CtApp 2-18-16

CRIMINAL LAW (COUNSEL NOT INEFFECTIVE RE MULTIPLE DISCLOSURES OF SEX ABUSE AND FAILURE TO CALL MEDICAL EXPERT)/ATTORNEYS (COUNSEL NOT INEFFECTIVE RE MULTIPLE DISCLOSURES OF SEX ABUSE AND FAILURE TO CALL MEDICAL EXPERT)/EVIDENCE (EVIDENCE OF MULTIPLE DISCLOSURES OF CHILD SEX ABUSE NOT BOLSTERING, ADMISSIBLE AS BACKGROUND INFORMATION)/EXPERT EVIDENCE (COUNSEL NOT INEFFECTIVE RE MULTIPLE DISCLOSURES OF SEX ABUSE AND FAILURE TO CALL MEDICAL EXPERT)/BOLSTERING (EVIDENCE OF MULTIPLE DISCLOSURES OF CHILD SEX ABUSE NOT BOLSTERING, ADMISSIBLE AS BACKGROUND)/BACKGROUND INFORMATION (EVIDENCE OF MULTIPLE DISCLOSURES OF CHILD SEX ABUSE NOT BOLSTERING, ADMISSIBLE AS BACKGROUND INFORMATION)

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