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

236
KA 14-01564
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

TODD C. MIRABELLA, DEFENDANT-APPELLANT.


EASTON THOMPSON KASPEREK SHIFFRIN LLP, ROCHESTER (BRIAN SHIFFRIN OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (ROBERT J. SHOEMAKER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Thomas E. Moran, J.), rendered January 6, 2014. The judgment
convicted defendant, upon a jury verdict, of sexual abuse in the first
degree (two counts), criminal sexual act in the first degree, and
sexual abuse in the third degree (two counts).

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

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of two counts of sexual abuse in the first degree
(Penal Law § 130.65 [4]), one count of criminal sexual act in the
first degree (§ 130.50 [4]), and two counts of sexual abuse in the
third degree (§ 130.55). 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 conclude that the verdict is not against the
weight of the evidence (see generally People v Bleakley, 69 NY2d 490,
495). We note that “[r]esolution of issues of credibility, as well as
the weight to be accorded to the evidence presented, are primarily
questions to be determined by the jury” (People v Witherspoon, 66 AD3d
1456, 1457, lv denied 13 NY3d 942 [internal quotation marks omitted]),
and we perceive no reason to disturb the jury’s resolution of those
questions in this case.

     We reject defendant’s contention that he received ineffective
assistance of counsel. Defendant contends that defense counsel should
have objected when a physician who examined one of the complainants
testified that the complainant had told him that there was
“digital/genital contact as well as oral/genital” contact. Defendant
contends that this constituted impermissible bolstering. We conclude
that the testimony was permissible as an exception to the hearsay rule
for statements relevant to diagnosis and treatment (see People v
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                                                         KA 14-01564

Spicola, 16 NY3d 441, 451-453, cert denied ___ US ___, 132 S Ct 400).
In addition, the physician’s testimony served the nonhearsay purpose
of “round[ing] out the narrative of the immediate aftermath of the . .
. disclosure” (id. at 453; see People v Ludwig, 24 NY3d 221, 231-232).
Inasmuch as the testimony was proper, defense counsel was not
ineffective for failing to object to it (see People v Caban, 5 NY3d
143, 152; People v Goley, 113 AD3d 1083, 1085; People v Dashnaw, 37
AD3d 860, 863, lv denied 8 NY3d 945).

      Defense counsel also was not ineffective for failing to seek a
missing witness charge with respect to two witnesses, because “[t]here
was no indication that the witness[es] would have provided
noncumulative testimony favorable to the People” (People v Smith, 118
AD3d 1492, 1493; see People v Myers, 87 AD3d 826, 828, lv denied 17
NY3d 954). Defendant has failed to demonstrate “ ‘the absence of
strategic or other legitimate explanations’ ” for defense counsel’s
failure to object to testimony that violated defendant’s right of
confrontation inasmuch as that testimony was favorable to defendant
(Caban, 5 NY3d at 152; see People v Reid, 71 AD3d 699, 700, lv
denied 15 NY3d 756). The prosecutor’s “statements that the
complainant[s] had no motive to lie constituted a fair response to
defense counsel’s summation, which attacked the complainant[s’]
credibility,” and thus defense counsel was not ineffective for failing
to object to those remarks on summation (People v Marcus, 112 AD3d
652, 653, lv denied 22 NY3d 1140; see People v Hill, 82 AD3d 1715,
1716, lv denied 17 NY3d 806). We have considered defendant’s
remaining instances of alleged ineffective assistance of counsel and
conclude that they are without merit. Viewing the evidence, the law,
and the circumstances of this case in totality and as of the time of
the representation, we conclude that defense counsel provided
meaningful representation (see generally People v Baldi, 54 NY2d 137,
147).

     We reject defendant’s further contention that the court erred in
denying his request for the complainants’ school and therapy records
without first conducting an in camera review of those records.
Defendant had the burden of showing that those records “are relevant
and material to facts at issue” (People v Kozlowski, 11 NY3d 223, 242,
rearg denied 11 NY3d 904, cert denied 556 US 1282). “The relevant and
material facts in a criminal trial are those bearing upon ‘the
unreliability of either the criminal charge or of a witness upon whose
testimony it depends’ ” (id.). Here, defendant failed to meet his
burden. He failed to “point to specific facts demonstrating a
reasonable likelihood that such material may be disclosed” and instead
was merely “engaged in a fishing expedition” (id.; see People v
Gissendanner, 48 NY2d 543, 549-550). Finally, the sentence is not
unduly harsh or severe.




Entered:   March 20, 2015                       Frances E. Cafarell
                                                Clerk of the Court
