                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: January 21, 2016                   105907
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

ELWOOD J. ADAMS JR.,
                    Appellant.
________________________________


Calendar Date:   November 23, 2015

Before:   Peters, P.J., McCarthy, Egan Jr., Devine and Clark, JJ.

                             __________


     Matthew C. Hug, Troy, for appellant.

      Derek P. Champagne, District Attorney, Malone (Jennifer M.
Hollis of counsel), for respondent.

                             __________


Clark, J.

      Appeal from a judgment of the County Court of Franklin
County (Catena, J.), rendered June 7, 2013, upon a verdict
convicting defendant of the crime of course of sexual conduct
against a child in the first degree (two counts).

      In October 2012, defendant, who was born in 1972, was
charged in an indictment with two counts of course of sexual
conduct against a child in the first degree stemming from
allegations that, between September 1, 2005 and October 1, 2007,
he engaged in two or more acts of sexual conduct with victim A
(born in 1994) and victim B (born in 1996), who were both less
than 13 years of age. Following a jury trial, defendant was
convicted of both counts and his motion to set aside the verdict
pursuant to CPL 330.30 was denied. Defendant was sentenced to a
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prison term of 20 years and 20 years of postrelease supervision
on each count, which sentences were to run concurrently.
Defendant appeals. Finding no merit to his contentions, we
affirm.

      Initially, defendant claims that the verdict was against
the weight of the evidence pointing to, among other things, a
lack of corroboration of the victims' testimony, which, according
to him, was also contradictory. While a different verdict would
not have been unreasonable here, upon our independent review and
weighing of the conflicting testimony in a neutral light and
deferring to the jury's determination to credit the victims'
accounts, we cannot agree that the jury failed to give the
evidence its deserving weight (see People v Danielson, 9 NY3d
342, 348 [2007]; People v Olson 110 AD3d 1373, 1374 [2013], lv
denied 23 NY3d 1023 [2014]; People v Fernandez, 106 AD3d 1281,
1282-1283 [2013]). Victim A testified that, in September 2005,
when she was in the sixth grade, defendant told her that he
wanted to teach her about sex and began by exposing her to
pornography. He then progressed from groping her to penetrating
her vagina with a sexual device and his fingers, performing oral
sex on her, and forcing her to touch his penis with her hand.
According to victim A, those instances of sexual abuse occurred
often and in a variety of locations and took place while her
mother was at work and her siblings were either outside of the
residence or were otherwise busied. According to victim A, she
did not tell anyone about the abuse while it was taking place
because she was afraid and defendant had told her that, if she
disclosed their sexual interaction, the other children would grow
up without a father figure and the family would fall apart and,
moreover, no one would believe her.

      Victim B, victim A's younger sister, testified that she was
between 9 and 10 years old in September 2005, when defendant
began sexually abusing her after having found out that her mother
had told her about sex. According to victim B, defendant stated
that he wanted to teach her more about sex and show her "how
things would feel." Defendant's abuse of victim B also
progressed over time and involved grabbing her, touching her,
performing oral sex on her, forcing her to perform oral sex on
him, and penetrating her vagina with a sexual device and his
                              -3-                105907

fingers. Like victim A, victim B described being abused by
defendant "whenever he could" when "nobody else was around."
According to victim B, she never told anyone about the abuse
while it was taking place because defendant told her not to and,
if she told anyone, he would go to jail and the family would
split up.

      "While there were discrepancies in some of the details,
they were fully explored and highlighted for the jury, and it is
'not uncommon for young children to be uncertain and even
inconsistent in their trial testimony'" (People v Fernandez, 106
AD3d at 1283-1284, quoting People v Raymo, 19 AD3d 727, 728
[2005], lv denied 5 NY3d 793 [2005]). Moreover, despite any
discrepancies, we feel it important to note that the children
remained resolute that the alleged sexual conduct had occurred, a
fact that was obviously credited by the jury. Furthermore, the
expert testimony of a clinical psychologist, Don Lewittes,
offered by the People, aided the jury's understanding of the
reasons that children delay disclosure, particularly when sexual
abuse occurs in family settings.

      Defendant testified, denying that any sexual contact of any
nature had occurred and offering explanations for why the victims
would be motivated to fabricate the allegations against him.
Defendant did, however, admit to telling the victims about
ejaculation. He also conceded telling the victims that sex was
the greatest thing they would ever feel and that it would hurt at
first but, if they used a "[sex] toy," it might make it easier
for them to have intercourse when they turn 18. He also
acknowledged that he "may have" told victim A that he would go to
jail when she accused him of sexually molesting her.
Additionally, defendant's statement to the police – which was
properly admitted into evidence at trial – contained similar
explanations of conduct whereby defendant claimed to have simply
been offering advice to the victims by, for example, instructing
them to wash sexual devices before use. Under these
circumstances, we find no basis to conclude that the jury's
determination to credit the victims' accounts is against the
weight of the evidence (see People v Bleakley, 69 NY2d 490, 494-
495 [1987]; People v Raymo, 19 AD3d at 728).
                              -4-                105907

      Nor do we find merit in defendant's contention that he was
denied the effective assistance of counsel. In this regard, we
are mindful "to avoid both confusing true ineffectiveness with
mere losing tactics and according undue significance to
retrospective analysis" (People v Baldi, 54 NY2d 137, 146 [1981];
see People v Stultz, 2 NY3d 277, 283 [2004]), and we view the
record in its totality in order to determine whether the
defendant was deprived of a fair trial by less than meaningful
representation (see People v Benevento, 91 NY2d 708, 712 [1998];
People v Baldi, 54 NY2d at 147).

      Initially, counsel was not ineffective for failing to
object either to the expert testimony or to the People's related
comments on summation. It is well settled that an expert witness
may testify about intra-familial child and adolescent child
sexual abuse syndrome, child sexual abuse accommodation syndrome
or other types of conditions associated with victims of sex abuse
(see People v Williams, 20 NY3d 579, 584 [2013]), so long as he
or she does not draw any comparison to the facts of the case (see
People v Spicola, 16 NY3d 441, 465 [2011], cert denied ___ US
___, 132 S Ct 400 [2011]; People v Taylor, 75 NY2d 277, 293
[1990]), as was the case here. Although, as noted by defendant,
the expert's testimony supported the victims' assertions, it does
not follow that Lewittes improperly bolstered their testimony or
drew a comparison between child sexual abuse syndrome and the
facts of this case, particularly in light of defense counsel's
cross-examination of the victims and defendant's own testimony
that tended to suggest, among other things, that the victims'
actions were inconsistent with having been sexually abused (see
People v Spicola, 16 NY3d at 465-466). For the same reasons, the
People's comments on summation referencing the expert's testimony
"constituted fair comment on the evidence" (People v Jabaut, 111
AD3d 1140, 1146 [2013], lv denied 22 NY3d 1139 [2014]).

      Next, inasmuch as defendant testified to his continuing
visitation with his children, we find no error in defense
counsel's failure to object to the People's further inquiry into
whether the visitation was supervised (see generally People v
Wiltshire, 96 AD3d 1227, 1229 [2012], lv denied 22 NY3d 1204
[2014]). Further, because defendant's written statement did not
involve prior bad acts or uncharged crimes, we find no error in
                              -5-                105907

counsel's failure to make a Ventimiglia motion to preclude its
use or his failure to make a motion in limine to redact it.
Viewing counsel's opening and closing statements as a whole, we
find that counsel did not impermissibly assume the burden of
proof. Moreover, the record reveals that, throughout the trial,
the jury was repeatedly told and reminded by County Court that
the burden never shifts and that defendant had no obligation to
offer any proof in defense. Additionally, in his closing
argument, defense counsel stated to the jury that the court would
instruct it that, before it can return a guilty verdict, it must
conclude that defendant's guilt was established beyond a
reasonable doubt. In this regard, defense counsel pointed out
the deficiencies in the People's proof, arguing that such
deficiencies created a "very significant question of doubt."
Furthermore, counsel's statements were not so egregious that they
would amount to ineffective assistance of counsel absent any
other significant errors – of which there were none (compare
People v Dean, 50 AD3d 1052, 1053 [2008]). Thus, the record
before us demonstrates that counsel vigorously cross-examined the
victims and pointed out inconsistencies and, as such, we have no
reason to doubt that defendant was provided with meaningful
representation (see People v Henry, 95 NY2d 563, 565-566 [2000]).

      We also find no merit to defendant's argument that his
sentence, which is well within the statutorily permissible range
(see Penal Law §§ 70.80 [4] [a] [i]; 130.75 [1] [b]), was harsh
or excessive (see People v Pimentel, 108 AD3d 861, 861 n 1
[2013], lv denied 21 NY3d 1076 [2013]). Given the age of the
victims, the duration of the conduct, the position of trust that
defendant had held and abused, the nature of the conduct involved
and his lack of remorse, we find no extraordinary circumstances
or an abuse of discretion warranting a modification (see People v
Sorrell, 108 AD3d 787, 794 [2013], lv denied 23 NY3d 1025 [2014];
People v Pimentel, 108 AD3d at 864).

      Defendant's contention that he was deprived of a fair trial
because of prosecutorial misconduct was not properly preserved
for our review. Defendant's remaining contentions, to the extent
not specifically addressed herein, are without merit.
                        -6-                  105907

Peters, P.J., McCarthy, Egan Jr. and Devine, JJ., concur.



ORDERED that the judgment is affirmed.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
