        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

200
KA 12-01787
PRESENT: SMITH, J.P., PERADOTTO, CARNI, VALENTINO, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MARK K. GOUPIL, DEFENDANT-APPELLANT.


LEONARD G. TILNEY, JR., LOCKPORT, FOR DEFENDANT-APPELLANT.

MICHAEL J. VIOLANTE, DISTRICT ATTORNEY, LOCKPORT (THOMAS H. BRANDT OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Niagara County Court (Matthew J.
Murphy, III, J.), rendered February 17, 2010. The judgment convicted
defendant, upon a jury verdict, of predatory sexual assault against a
child (three counts).

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: On appeal from a judgment convicting him upon a jury
verdict of three counts of predatory sexual assault against a child
(Penal Law § 130.96), defendant contends that County Court erred in
refusing to permit him to introduce evidence of the victim’s prior
sexual conduct pursuant to CPL 60.42. We reject that contention. The
evidence in question does “ ‘not fall within any of the exceptions set
forth in CPL 60.42 (1) through (4), and defendant failed to make an
offer of proof demonstrating that such evidence was relevant and
admissible pursuant to CPL 60.42 (5)’ ” (People v Wright, 37 AD3d
1142, 1143, lv denied 8 NY3d 951; see People v Halter, 19 NY3d 1046,
1049).

     We also conclude that defendant failed to preserve for our review
his contention that he was deprived of a fair trial based on
prosecutorial misconduct during summation (see CPL 470.05 [2]; People
v Brown, 94 AD3d 1461, 1462, lv denied 19 NY3d 955). In any event,
defendant’s contention is without merit because the prosecutor’s
comments were “ ‘either a fair response to defense counsel’s summation
or fair comment on the evidence’ ” (People v Green, 60 AD3d 1320,
1322, lv denied 12 NY3d 915).

     Defendant failed to preserve for our review his further
contention that he was denied a fair trial based on the testimony of
an expert with respect to child sexual abuse accommodation syndrome
(CSAAS) (see People v Lawrence, 81 AD3d 1326, 1327, lv denied 17 NY3d
                                 -2-                          200
                                                        KA 12-01787

797) and, in any event, that contention is without merit. “Expert
testimony concerning CSAAS is admissible to assist the jury in
understanding the unusual conduct of victims of child sexual abuse
where, as here, the testimony is general in nature and does ‘not
attempt to impermissibly prove that the charged crimes occurred’ ”
(People v Filer, 97 AD3d 1095, 1096, lv denied 19 NY3d 1025, quoting
People v Carroll, 95 NY2d 375, 387).

     We reject defendant’s contention that he was denied effective
assistance of counsel. Viewing the evidence, the law and the
circumstances of this case, in totality and as of the time of the
representation, we conclude on the record before us that defendant
received meaningful representation (see generally People v Flores, 84
NY2d 184, 187; People v Baldi, 54 NY2d 137, 147). Insofar as
defendant contends that defense counsel was ineffective in her cross-
examination of the victim, we conclude that “ ‘[s]peculation that a
more vigorous cross-examination might have [undermined the credibility
of a witness] does not establish ineffectiveness of counsel’ ” (People
v Bassett, 55 AD3d 1434, 1438, lv denied 11 NY3d 922). Contrary to
his further contention, “[d]efendant was not denied effective
assistance of counsel based on defense counsel’s failure to object to
the allegedly improper comments by the prosecutor on summation
inasmuch as those comments did not constitute prosecutorial
misconduct” (People v Hill, 82 AD3d 1715, 1716, lv denied 17 NY3d
806). Finally, the sentence is not unduly harsh or severe.




Entered:   March 15, 2013                      Frances E. Cafarell
                                               Clerk of the Court
