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

769
KA 13-01574
PRESENT: SCUDDER, P.J., SMITH, SCONIERS, VALENTINO, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JOSEPH MAXEY, JR., DEFENDANT-APPELLANT.


TYSON BLUE, MACEDON, FOR DEFENDANT-APPELLANT.

JOSEPH MAXEY, JR., DEFENDANT-APPELLANT PRO SE.

RICHARD M. HEALY, DISTRICT ATTORNEY, LYONS (WENDY EVANS LEHMANN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Wayne County Court (Dennis M.
Kehoe, J.), rendered July 11, 2013. The judgment convicted defendant,
upon a jury verdict, of predatory sexual assault against a child, rape
in the third degree (six counts), rape in the second degree (two
counts), and endangering the welfare of a child (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 predatory sexual assault against a child
(Penal Law § 130.96), six counts of rape in the third degree (§ 130.25
[2]), two counts of rape in the second degree (§ 130.30 [1]), and two
counts of endangering the welfare of a child (§ 260.10 [1]) in
connection with offenses committed against his three stepdaughters
over a 4½-year period. Defendant failed to preserve for our review
his contention that the People were permitted to “overload” their case
with Molineux evidence (see People v Moore, 50 AD3d 926, 927, lv
denied 10 NY3d 937). In any event, defendant’s contention is without
merit. County Court permitted limited testimony regarding uncharged
offenses, and that testimony was relevant to establish the nature of
the relationship between defendant and the eldest victim (see People v
Washington, 122 AD3d 1406, 1408). The court also properly permitted
evidence establishing that defendant is the father of that victim’s
child, who was conceived when the victim was 17 years old, inasmuch as
it
“ ‘placed the charged conduct in context’ ” (People v Leeson, 12 NY3d
823, 827; see People v Cullen, 110 AD3d 1474, 1475, affd 24 NY3d
1014). Evidence of other noncriminal conduct provided background
information with respect to the nature of the relationship between
defendant and the victims (see Cullen, 110 AD3d at 1475), and provided
                                 -2-                           769
                                                         KA 13-01574

information regarding the family dynamic, which explained why the
victims delayed in reporting the abuse (see People v Justice, 99 AD3d
1213, 1215, lv denied 20 NY3d 1012). Contrary to defendant’s
contention, the probative value of the Molineux evidence outweighed
the prejudicial effect, which was minimized by the court’s repeated
limiting instructions to the jury (see Washington, 122 AD3d at 1408).

     We reject defendant’s further contention that he was denied
effective assistance of counsel based upon the failure of defense
counsel to obtain an expert witness to rebut the testimony of the
prosecution’s expert witness regarding child sexual abuse
accommodation syndrome. Defendant has failed to establish the absence
of any strategic or other legitimate explanation for the failure of
defense counsel to call an expert (see generally People v Caban, 5
NY3d 143, 152). Defendant has failed to demonstrate that such expert
testimony was available, that it would have assisted the jury, or that
he was prejudiced by the lack of such testimony (see Washington, 122
AD3d at 1407), especially in light of defense counsel’s vigorous
cross-examination of the People’s expert witness. We reject
defendant’s additional contention in his pro se supplemental brief
that he was denied effective assistance of counsel based upon defense
counsel’s failure to admit in evidence records of investigations of
unfounded allegations of sexual abuse by Child Protective Services.
The court properly determined that those records were not admissible
(see Social Services Law § 422 [5] [b]), and properly sustained the
People’s objection to hearsay testimony of the caseworker called to
testify on defendant’s behalf that the victims had denied allegations
of sexual abuse. In any event, we note that defense counsel cross-
examined the eldest victim with respect to her prior denials to
caseworkers and police that defendant was sexually abusing her. We
conclude that defendant received meaningful representation (see
generally People v Baldi, 54 NY2d 137, 147).

     Defense counsel made only one objection during the prosecutor’s
summation and thus has failed to preserve for our review his
contention regarding two of the three statements that defendant now
alleges constituted prosecutorial misconduct on summation (see People
v Johnson, 121 AD3d 1578, 1579). In any event, we conclude that
defendant’s contention that alleged prosecutorial misconduct on
summation deprived him of a fair trial is without merit. The
prosecutor’s remarks were a permissive response to the defense
summation (see People v Walker, 117 AD3d 1441, 1441-1442, lv denied 23
NY3d 1044), and “did not exceed the bounds of legitimate advocacy”
(People v Miller, 104 AD3d 1223, 1224, lv denied 21 NY3d 1017
[internal quotation marks omitted]).




Entered:   June 19, 2015                        Frances E. Cafarell
                                                Clerk of the Court
