This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 66
The People &c.,
            Respondent,
        v.,
            Appellant.




           Patricia Pazner, for appellant.
           Deborah E. Wassel, for respondent.




STEIN, J.:
           In this child sex abuse case, defendant has not
established that he was denied the effective assistance of
counsel.   He has not demonstrated the absence of strategic or
legitimate explanations for counsel's failure to object to the
admission of evidence that the victim disclosed the abuse three

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years after it ceased, and then again four years after her
initial disclosure.   Therefore, we affirm.
                                  I.
          Defendant was charged in an indictment with course of
sexual conduct against a child in the first and second degrees
after the then 17-year-old victim, a member of defendant's
extended family, revealed to a school counselor that defendant
had molested her repeatedly when she was between the ages of 5
and 10 years old.   Defendant acknowledges that the defense at
trial was that the disclosure to the school counselor was a
recent fabrication, but argues that the defense was not adopted
until summations and was inexplicable given the testimony that
the victim had disclosed the abuse to three friends approximately
four years earlier.   However, the record reflects that defense
counsel's strategy of portraying the victim as a troubled teen
who fabricated the allegations was evident as early as voir dire
and continued throughout trial.    For example, during voir dire,
counsel informed the jury that "the case [was] about" the
"significant amount of time that passed before [the victim] told
anybody about this," and asked the jurors to determine whether
the victim was a troubled teen based on all the evidence. Counsel
later confirmed that this was the strategy that he had chosen to
employ from the beginning of trial, stating during a sidebar,
"[a]s you know from my voir dire, your Honor, one of my arguments
is that this young lady is a troubled teen."


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           Counsel further laid the groundwork for a recent
fabrication defense in his opening statement, asserting that the
victim waited seven years to "say something . . . [t]hat's a long
time," and explaining that, even if the jury believed the
victim's claim that she previously disclosed the abuse to her
friends, she waited an additional four years to tell an adult.
Counsel asserted that the victim would give details of the abuse
and urged the jury to compare her different statements in
analyzing the victim's credibility.    Counsel also acknowledged
that the People would present expert testimony explaining "delay
in outcry" and that delay did not mean that the abuse did not
occur, but argued that the delay did not necessarily mean that
the victim's claims were true.1
           The victim's parents testified that, during the
relevant time frame, they frequently brought the victim to
defendant's apartment for babysitting.    The victim testified
that, beginning in 1999, when she was about five years old and
for a period of about five years thereafter, defendant repeatedly
touched her genitals both over and under her clothing, and made
her touch his genitals over and under his clothes.    Defendant
also had the victim get on top of him and "ride" him while
clothed, performed oral sex on her three times and twice made her
watch pornography in his bedroom.     According to the victim, the
abuse stopped in 2004, during the summer before the victim

     1
         The expert did so testify.

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entered fifth grade, after she twice threatened to call the
police.
          The victim testified that the first time she told
anyone that defendant had molested her was about three years
after the abuse stopped, when she disclosed to three friends.
The victim next disclosed the abuse to her school counselor in
February 2011.   Defense counsel elicited from the victim that she
told the school counselor about the prior abuse because she was
having nightmares and her grades were dropping and that, two
months before the disclosure, the victim wrote in a journal she
kept for her English class that she heard "voices in my head
[that] tell me to do bad things," including hurting herself.      At
another sidebar addressing the permissible scope of cross-
examination on the journal, counsel argued that the victim's
statement in the journal went "right back to the heart of our
case[,] . . . [t]his is a troubled young lady."
          The school counselor testified that the victim revealed
that "somebody was touching her when she was young . . . [o]n her
breast and vagina.   She also shared that she was in certain
bedrooms and oral sex was performed on her."2   The court twice
instructed the jury during the school counselor's recitation of
the victim's statements that the evidence was not admitted for
its truth, but on the issue of outcry and the victim's state of


     2
        Upon hearing this, the counselor contacted family
services, the police and the victim's mother.

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mind.    Defense counsel elicited that the school counselor had
been asked to meet with the victim due to "issues [the victim]
was having in school" and to address the victim's statements in
her journal.
            The detective who was assigned to the victim's case
testified that the victim told him that, from 1999 to 2004, she
had, "on numerous occasions . . . been sexually abused in the
nature ranging from being touched to being made to touch a man's
penis."    The detective further testified, without objection, that
he spoke to one of the victim's friends and confirmed that the
victim had previously disclosed the abuse to the friend.    During
cross-examination, counsel asked the detective whether the victim
gave him details about the abuse -- which involved her being
touched under her clothes but did not include her claim that
defendant performed oral sex on her -- and the detective answered
"yes."
            In summation, counsel emphasized the victim's statement
in her journal that the voices in her head tell her to do bad
things, which was written only two months before the victim's
disclosure to the counselor.    He argued that it was not
believable that the previous disclosure to friends was ever made,
noting that the People failed to corroborate the disclosure by
calling any of the victim's friends and that the victim's friends
never told anyone else about the abuse.    Counsel also urged the
jury to focus on the length of the delay between the abuse and


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the first disclosure to an adult, as well as the problems in the
victim's life occurring at the time.   Counsel argued that the
journal was "proof of just how troubled this young lady really
was at that time" and also pointed to numerous inconsistencies in
the victim's testimony.
           During jury instructions, the court charged the jury
with respect to prompt outcry, including that "[e]vidence that
the complaining witness either made prompt disclosure . . . or
evidence that she failed to do so may be considered by you as
bearing upon the witness's credibility."   The jury found
defendant guilty of first-degree course of sexual conduct against
a child.   The Appellate Division affirmed (133 AD3d 882 [2d Dept
2015]) and a Judge of this Court granted defendant leave to
appeal (27 NY3d 965 [2016]).
                                II.
           As recently explained in People v Gross, "[o]n an
ineffective assistance of counsel claim under the Sixth Amendment
to the United States Constitution, a defendant must demonstrate
that (1) his or her attorney committed errors so egregious that
he or she did not function as counsel within the meaning of the
United States Constitution, and (2) that counsel's deficient
performance actually prejudiced the defendant" (26 NY3d 689, 693
[2016]).   In contrast, "New York's constitutional requirement of
effective assistance of counsel is met when 'the evidence, the
law, and the circumstances of a particular case, viewed in


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totality and as of the time of the representation, reveal that
the attorney provided meaningful representation'" (id., quoting
People v Benevento, 91 NY2d 708, 712 [1998]).    The difference
between the federal and state standards is that "our state
standard . . . offers greater protection than the federal test"
because, "under our State Constitution, even in the absence of a
reasonable probability of a different outcome, inadequacy of
counsel will still warrant reversal whenever a defendant is
deprived of a fair trial" (People v Caban, 5 NY3d 143, 156
[2005]).   Under both standards, "the defendant must overcome the
presumption that, under the circumstances, the challenged action
might be considered sound trial strategy" (Strickland v
Washington, 466 US 668, 689 [1984][internal quotation marks and
citation omitted]).   In other words, a defendant must
"'demonstrate the absence of strategic or other legitimate
explanations' for counsel's alleged shortcomings" (People v
Henderson, 27 NY3d 509, 513 [2016], quoting Benevento, 91 NY2d at
712).
           Here, defendant argues that counsel's failure to object
to the testimony regarding the victim's disclosures must have
arisen from his ignorance or misunderstanding of the law on
prompt outcry testimony and, thus, cannot be considered a matter
of strategy.   We disagree.   While "it is generally improper to
introduce testimony that the witness had previously made prior
consistent statements" to bolster the witness's credibility, the


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use of prior consistent statements is permitted to demonstrate a
prompt outcry, rebut a charge of recent fabrication, or "to
assist in 'explaining the investigative process and completing
the narrative of events leading to defendant's arrest'" (Gross,
26 NY3d at 694-695, quoting People v Ludwig, 24 NY3d 221, 231
[2014]).   Indeed, in People v Ludwig, "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'"
(Gross, 26 NY3d at 695, quoting Ludwig, 24 NY3d at 231 [internal
quotation marks omitted]).
           A conclusion that the fact of the victim's disclosures
herein to the school counselor and detective would likely be
admissible to "complete the narrative" was "consistent with [a
conclusion that] a reasonably competent attorney" could make
(People v Oathout, 21 NY3d 127, 128 [2013] [internal quotation
marks omitted]).   That is, although defendant was convicted prior
to our decisions in Ludwig and Gross, counsel was not ineffective
for failure to make a motion that had little chance of success
(see Caban, 5 NY3d at 152).   Instead of objecting to that
testimony, counsel strategically chose to use the evidence to
defendant's advantage by exploring the substance of, and the
circumstances surrounding, the disclosure in depth to support the
defense of recent fabrication.    Moreover, while it is undisputed


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that the elicitation on cross-examination of testimony regarding
the victim's troubled mental state at the time she disclosed the
abuse to the school counselor essentially introduced a "motive to
fabricate" and thereby opened the door to admission of the
previous disclosure to her friends (see People v Rosario, 17 NY3d
501, 513 [2011]), counsel argued to the jury that they should not
believe that the earlier disclosure ever occurred for various
reasons.   Further, in cross-examination of the victim about the
three-year disclosure, and of the school counselor and detective
about the seven-year disclosure, counsel was able to demonstrate
inconsistencies in the disclosures.
           Counsel's strategy -- in support of his recent
fabrication defense -- of using the evidence surrounding the
disclosures and the inconsistencies between the victim's various
statements was evident beginning with voir dire and consistently
followed throughout trial.   That counsel's strategy was
ultimately unsuccessful does not alter our analysis because, as
this Court has repeatedly stated, "a reviewing court must avoid
confusing 'true ineffectiveness with mere losing tactics and
according undue significance to retrospective analysis'[;] . . .
counsel's efforts should not be second-guessed with the clarity
of hindsight to determine how the defense might have been more
effective" (People v Benevento, 91 NY2d at 712, quoting People v
Baldi, 54 NY2d 137, 146 [1981]).
           On this record, where the victim's credibility was the


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primary issue at trial, and given that "[t]he test is reasonable
competence, not perfect representation" (People v Pavone, 26 NY3d
629, 647 [2015] [internal quotation marks and citation omitted]),
defendant has not established that counsel was ineffective.
Accordingly, the order of the Appellate Division should be
affirmed.
*   *   *   *   *   *   *   *     *      *   *   *   *   *   *   *   *
Order affirmed. Opinion by Judge Stein. Chief Judge DiFiore and
Judges Rivera, Fahey, Garcia and Wilson concur.

Decided June 8, 2017




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