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

1381
KA 10-01039
PRESENT: SCUDDER, P.J., CENTRA, CARNI, LINDLEY, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                                MEMORANDUM AND ORDER

DAVID BURGOS, DEFENDANT-APPELLANT.


BRUCE R. BRYAN, SYRACUSE, FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (VICTORIA M. WHITE
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Onondaga County
(John J. Brunetti, A.J.), rendered December 22, 2009. The judgment
convicted defendant, upon a jury verdict, of course of sexual conduct
against a child in the first degree and endangering the welfare of a
child.

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

     Memorandum: Defendant appeals from a judgment convicting him
following a jury trial of course of sexual conduct against a child in
the first degree (Penal Law § 130.75 [1] [b]) and endangering the
welfare of a child (§ 260.10 [1]). By its verdict, the jury found
that defendant sexually abused his former girlfriend’s daughter from
the time the child was 8 years old until she was almost 13 years old.
We reject defendant’s contention that he was denied effective
assistance of counsel based upon, inter alia, defense counsel’s
failure to call a medical expert to testify regarding the absence of
physical evidence of sexual abuse. It is well established that, “[t]o
prevail on a claim of ineffective assistance of counsel, it is
incumbent on defendant to demonstrate the absence of strategic or
other legitimate explanations for counsel’s failure to” call such a
witness (People v Rivera, 71 NY2d 705, 709), and he failed to do so
here. Indeed, given the delay between the last act of abuse and the
victim’s disclosure, i.e., a period in excess of one year, and given
the fact that there was never any vaginal penetration, it was not
likely that there would be physical evidence of abuse. We note in any
event that defendant relies on Gersten v Senkowski (426 F3d 588, cert
denied 547 US 1191) in support of his contention, but we conclude that
his reliance thereon is misplaced. In that case, the petition for a
writ of habeas corpus was granted based, in part, upon the failure of
petitioner’s trial attorney to obtain a medical expert to challenge
the testimony of the People’s expert that a physical examination of
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                                                         KA 10-01039

the victim showed signs of sexual abuse. Here, unlike in Gersten, the
People offered no such expert testimony regarding signs of abuse. We
have examined the remaining allegations of ineffective assistance of
counsel raised by defendant and conclude that they lack merit (see
generally People v Baldi, 54 NY2d 137, 147).

     We also reject defendant’s contention that the People failed in
the indictment and superseding indictment to specify the time, date
and place of the alleged offenses in an adequate manner. “ ‘The text
and legislative history of [the crime of course of sexual conduct
against a child] make clear that it is a continuing crime to which the
usual requirements of specificity with respect to time do not
pertain’ ” (People v McLoud, 291 AD2d 867, 868, lv denied 98 NY2d
678). That principle applies equally to the crime of endangering the
welfare of a child (see People v Keindl, 68 NY2d 410, 421-422, rearg
denied 69 NY2d 823). We conclude that the period of time set forth in
the superseding indictment “was sufficient to give defendant adequate
notice of the charges to enable him to prepare a defense, to ensure
that the crimes for which he was tried were in fact the crimes with
which he was charged, and ‘to protect [his] right not to be twice
placed in jeopardy for the same conduct’ ” (McLoud, 291 AD2d at 868;
see Keindl, 68 NY2d at 416-417).

     Viewing the evidence in light of the elements of the crimes as
charged to the jury (see People v Danielson, 9 NY3d 342, 349), we
reject defendant’s further contention that the verdict is against the
weight of the evidence (see generally People v Bleakley, 69 NY2d 490,
495). Although as noted the victim failed to disclose the sexual
abuse for over a year, and even assuming that she had a motive to
fabricate the charges, her credibility was an issue for the jurors to
determine, and we perceive no basis for disturbing their credibility
determination (see People v Massey, 61 AD3d 1433, lv denied 13 NY3d
746). We also reject defendant’s contention that the People misled
him concerning a Valentine’s Day card sent by him to the victim
because their bill of particulars indicated that they did not intend
to offer at trial any statements made by defendant. The People’s duty
to disclose statements by a defendant extends only to statements made
“to a public servant engaged in law enforcement activity or to a
person then acting under [the public servant’s] direction or in
cooperation with him [or her]” (CPL 240.20 [1] [a]). Statements made
by a defendant to persons not acting “in any law enforcement capacity”
are not discoverable (People v Swart, 273 AD2d 503, 504, lv denied 95
NY2d 908).

     Contrary to defendant’s contention, Supreme Court did not err in
admitting evidence regarding the victim’s disclosure of the abuse to
third parties. The record establishes both that the evidence was not
admitted for its truth, and that the court gave an appropriate
limiting instruction to that effect (see People v Tosca, 98 NY2d 660;
People v Shivers, 301 AD2d 473, 473-474, lv denied 99 NY2d 658). We
further conclude that the court properly admitted evidence that the
victim was in counseling at the time she disclosed the abuse, inasmuch
as it provided background information as to how the abuse was
ultimately disclosed (see generally People v Bassett, 55 AD3d 1434,
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                                                         KA 10-01039

1436, lv denied 11 NY3d 922).

     The sentence is not unduly harsh or severe. We have reviewed
defendant’s remaining contentions and conclude that they are without
merit.




Entered:   December 30, 2011                    Frances E. Cafarell
                                                Clerk of the Court
