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

383
KA 13-00670
PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

GORDON GROSS, DEFENDANT-APPELLANT.


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

RICHARD M. HEALY, DISTRICT ATTORNEY, LYONS (MELVIN BRESSLER OF
COUNSEL), FOR RESPONDENT.


     Appeal, by permission of a Justice of the Appellate Division of
the Supreme Court in the Fourth Judicial Department, from an order of
the Wayne County Court (John B. Nesbitt, J.), dated March 27, 2013.
The order denied the motion of defendant pursuant to CPL 440.10.

     It is hereby ORDERED that the order so appealed from is affirmed.

     Memorandum: Defendant appeals from an order denying his motion
pursuant to CPL 440.10 seeking to vacate the judgment convicting him
of, inter alia, course of sexual conduct against a child in the first
degree (Penal Law § 130.75 [1] [b]), which we previously affirmed
(People v Gross, 79 AD3d 1660, lv denied 16 NY3d 895). In support of
his motion, defendant contended that he was denied effective
assistance of counsel based on defense counsel’s failure to object to
the testimony of certain non-expert witnesses on the ground that the
testimony bolstered the testimony of the victim. Defendant submitted
the affirmation of his present attorney, who stated that, when he
spoke to trial counsel, she informed him that she did not have a
strategic basis for her failure to object to the testimony or to the
prosecutor’s reference to the testimony during summation. County
Court determined that the testimony, which did not reveal the nature
of the conversation that the victim had with the respective witnesses
(cf. People v Rosario, 17 NY3d 501, 507-508; People v McDaniel, 81
NY2d 10, 14), “was not prejudicial so as to make defense counsel’s
failure to object tantamount to ineffective assistance of counsel.”
Prior to the court’s decision in this matter, however, we determined
in People v Ludwig (104 AD3d 1162, 1163, lv granted 21 NY3d 1043) that
the testimony “to explain how the victim eventually disclosed the
abuse and how the investigation started” did not constitute improper
bolstering because it was not admitted for its truth and thus that
defense counsel’s failure to object to the testimony did not
constitute ineffective assistance of counsel. We therefore conclude
                                 -2-                           383
                                                         KA 13-00670

that defendant’s contention lacks merit.

     Although not specifically contended by defendant, our dissenting
colleagues conclude that defense counsel was ineffective by failing to
object to the testimony of the victim that she reported to her mother
at age six that defendant had touched her in a sexual manner; that she
reported to her sister at age 14 that defendant had raped her; and
that she told a police witness and the grand jury what she told the
jury during her testimony. We respectfully disagree with that
conclusion. Although the dissent correctly notes that the repetition
of prior consistent statements may “give to a jury an exaggerated idea
of the probative force of a party’s case” (People v Smith, 22 NY3d
462, 466), here, the victim’s testimony constituted a narrative of
events. Indeed, she did not repeat the specific allegations of her
testimony, i.e., that defendant had engaged in anal penetration (cf.
People v McNeill, 107 AD3d 1430, 1431, lv denied 22 NY3d 957). In
light of defense counsel’s opening statement that the relationship
between defendant, the victim and the victim’s mother was such that it
could “cause someone to make fake allegations,” the narrative of
events was relevant. We also disagree with our dissenting colleagues
that defense counsel’s failure to object to the prosecutor’s remarks
during summation referencing that testimony constitutes ineffective
assistance of counsel. Because the remarks were a fair response to
defense counsel’s summation challenging the credibility of the victim
and her motivation for making the accusations (see People v Martinez,
114 AD3d 1173, 1173), we conclude that the failure of defense counsel
to object to those comments does not constitute ineffective assistance
of counsel (see id. at 1174).

     We also reject defendant’s contention that defense counsel’s
failure to consult with a medical expert constitutes ineffective
assistance of counsel (see People v Flores, 83 AD3d 1460, 1461, affd
19 NY3d 881; People v Burgos, 90 AD3d 1670, 1670-1671, lv denied 19
NY3d 862; cf. People v Okongwu, 71 AD3d 1393, 1395-1396). The victim
was examined by the prosecution expert nearly four years following the
last incident of anal penetration, and the expert testified that the
exam was normal. The expert further explained that, although the
victim reported occasional bleeding following the incidents of anal
penetration, she would not expect to see scarring four years later
because the area heals quickly. On cross-examination, the expert
confirmed that a normal exam would also be consistent with the
examination of a child who had not been subjected to anal penetration.
We therefore conclude that trial counsel effectively cross-examined
the People’s expert and raised an area of possible doubt arising from
her testimony (see Flores, 83 AD3d at 1461). Defendant’s attorney
stated in his affirmation that trial counsel explained to him that she
did not expect that the prosecution expert, who was not a treating
physician but only conducted a forensic examination of the victim,
would be permitted to repeat the allegations (see People v
Ballerstein, 52 AD3d 1192, 1193), and that she did not consult an
expert inasmuch as the victim’s examination was normal (cf. Okongwu,
71 AD3d at 1395). We therefore conclude that defendant failed to
establish the lack of a legitimate explanation for trial counsel’s
failure to call a medical witness (see Burgos, 90 AD3d at 1670). We
                                 -3-                           383
                                                         KA 13-00670

conclude that trial counsel’s explanations for the alleged
deficiencies in her representation of defendant did not warrant a
hearing on whether defendant was deprived of meaningful representation
(cf. People v Zeh, 22 NY3d 1144, 1145-1146). We note in addition
that, in his affirmation, defendant’s attorney provided citations to
medical literature, which purportedly explain that there are a variety
of physical manifestations that may be detected upon the exam of a
child who was subjected to anal penetration and that only a small
percentage of children do not have any such physical manifestation.
He contends, therefore, that trial counsel was ineffective in failing
to consult with, or call as a witness, an expert with respect to those
potential physical manifestations of anal penetration. Defendant
failed, however, to provide an expert affidavit indicating that those
physical manifestations may be present several years following the
last incident of abuse (cf. Gersten v Senkowski, 426 F3d 588, 599-600,
cert denied 547 US 1191; see generally Burgos, 90 AD3d at 1670-1671).

     We conclude that the court properly denied the motion inasmuch as
the record establishes that defendant was provided with meaningful
representation (see generally People v Baldi, 54 NY2d 137, 147).
Although we agree with defendant that defense counsel lacked any
strategic or reasonable basis for her failure to object when the
expert witness repeated the specific allegations that defendant had
anally penetrated her (cf. People v Spicola, 16 NY3d 441, 451, cert
denied ___ US ___, 132 S Ct 400; see generally People v Ortega, 15
NY3d 610, 618), we nevertheless conclude that the single error in an
otherwise competent representation was not so “egregious and
prejudicial as to compromise [the] defendant’s right to a fair trial”
(People v Caban, 5 NY3d 143, 152; cf. People v Turner, 5 NY3d 476,
480-481). Defense counsel made effective opening and closing
statements challenging the motivation and credibility of the victim;
effectively cross-examined the prosecution witnesses; and presented
the testimony of several witnesses, including defendant, who
contradicted specific details of the victim’s testimony.

     All concur except CARNI and LINDLEY, JJ., who dissent and vote to
reverse in accordance with the following Memorandum: We respectfully
dissent. In our view, defendant was deprived of his right to
effective assistance of counsel as a result of his trial attorney’s
failure to object to inadmissible testimony regarding numerous prior
consistent statements made by the victim. One of the prosecution
witnesses who offered inadmissible testimony was a pediatrician who
examined the victim at the People’s request in October 2008, when the
victim was 14 years old and after defendant had been indicted. The
pediatrician testified that the victim told her that defendant “anally
penetrated” her with his penis when she was six and seven years old.
Defendant challenged the admissibility of that testimony on his direct
appeal from the judgment of conviction, but we concluded that his
contention was not preserved for our review (People v Gross, 79 AD3d
1660, 1662, lv denied 16 NY3d 895).

     In our view, the pediatrician’s testimony impermissibly bolstered
the victim’s trial testimony. The victim’s statement to the
pediatrician obviously does not constitute a prompt outcry, and the
                                 -4-                           383
                                                         KA 13-00670

evidence was not offered by the People to rebut a claim of recent
fabrication (see generally People v Rosario, 17 NY3d 501, 512-513).
Moreover, and contrary to the People’s contention, the victim’s
statements to the pediatrician were not necessary for diagnosis and
treatment inasmuch as the pediatrician provided no treatment to the
victim (cf. People v Spicola, 16 NY3d 441, 451, cert denied ___ US
___, 132 S Ct 400).

      If defense counsel’s failure to object to the pediatrician’s
testimony on the proper grounds were her only failing, perhaps it
could be said that this single error was not so “egregious and
prejudicial as to compromise [the] defendant’s right to a fair trial”
(People v Caban, 5 NY3d 143, 152; see People v Turner, 5 NY3d 476,
480). But defense counsel also failed to object to (1) the victim’s
testimony that, when she was five or six years old, she told her
mother that defendant was touching her sexually; (2) the victim’s
testimony that, on May 15, 2008, she told her sister that defendant
raped her; (3) the victim’s testimony that, while in her principal’s
office on May 16, 2008, she told a detective the same thing that she
told the jury, and that she then showed an investigator the location
of the field where the “sexual abuse” occurred; and (4) the victim’s
testimony that she told the aforementioned pediatrician what happened
with defendant, and that the pediatrician then examined her vagina and
anus.

     It is well settled that “the testimony of a witness may not be
corroborated or bolstered by evidence of prior consistent statements
made before trial” (People v McClean, 69 NY2d 426, 428; see People v
Buie, 86 NY2d 501, 509-511; People v McDaniel, 81 NY2d 10, 16). The
reason for the rule against the admission of prior consistent
statements is that “an untrustworthy statement is not made more
trustworthy by repetition” (McClean, 69 NY2d at 428; see People v
Seit, 86 NY2d 92, 95). As the Court of Appeals has reiterated, “the
admission of prior consistent statements may, by simple force of
repetition, give to a jury an exaggerated idea of the probative force
of a party’s case” (People v Smith, 22 NY3d 462, 466). As noted,
evidence of prior consistent statements alleging sexual abuse may be
admitted under the prompt outcry rule or to rebut a claim of recent
fabrication (see Rosario, 17 NY3d at 512-513), but neither exception
to the general rule applies to any of the above testimony, and we can
discern no strategic reason for defense counsel’s failure to object to
the inadmissible evidence.

     We note in addition that the victim’s prior consistent statements
— to her mother, her sister, the police, and the pediatrician — were
relied upon heavily by the prosecutor during his summation, without
objection by defense counsel. After recounting each prior consistent
statement, the prosecutor argued in sum and substance that, because
the victim had told so many people on so many occasions that defendant
had raped her, she must be telling the truth. It is clear from the
summation that the victim’s prior consistent statements were used by
the People to establish the truth of the matters asserted therein, and
not for any ancillary purpose.
                                 -5-                           383
                                                         KA 13-00670

     We cannot agree with the majority that defendant has not
specifically contended on appeal that defense counsel was ineffective
for failing to object to the victim’s testimony regarding her prior
consistent statements. In the factual portion of his brief, defendant
sets forth each instance where the victim testified about consistent
statements she made prior to trial, noting that defense counsel did
not object to any of the testimony. In the argument portion of his
brief, defendant contends that the “failure of defense counsel to
timely object to the repeated bolstering and testimony as to prior
consistent statements of the complainant by seven of the eight
prosecution witnesses” deprived defendant of his right to effective
assistance of counsel. Defendant then identifies by name the seven
prosecution witnesses who provided inadmissible bolstering testimony,
and one of those witnesses is the victim. We thus conclude that the
issue whether defense counsel was ineffective for failing to object to
the victim’s bolstering testimony is properly before us.

     We also respectfully disagree with the majority that the prior
consistent testimony offered by the victim was admissible because it
constituted a narrative of events. We found no cases that recognize a
narrative exception to the rule against the admission of prior
consistent statements, and such an exception, if created, would
swallow the rule altogether. Although testimony regarding out of
court statements that complete the narrative by “provid[ing]
background information” does not constitute inadmissible hearsay on
the theory that such testimony is not offered for the truth of the
matters asserted (People v Tosca, 98 NY2d 660, 661), the testimony at
issue here did not complete the narrative; instead, the testimony
merely repeated the narrative, which was that defendant sexually
molested the victim.

     In any event, the motion court, in denying defendant’s CPL 440.10
motion, did not rule that the prior consistent statements in question
were admissible to explain the narrative of events. The court
determined that any “error was harmless” because the jurors “would
expect that a witness alleging to be a victim in a sex abuse case
would have made some disclosures prior to trial,” and because there
may have been a strategic reason for defense counsel’s failure to
object to the testimony. Thus, in our view, we cannot affirm the
instant order on the ground that the evidence was admissible in the
first instance (see CPL 470.15 [1]; People v Concepcion, 17 NY3d 192,
196; People v LaFontaine, 92 NY2d 470, 474).

     We would therefore reverse the order denying defendant’s CPL
440.10 motion and grant him a new trial.




Entered:   June 20, 2014                        Frances E. Cafarell
                                                Clerk of the Court
