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This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 13
The People &c.,
            Respondent,
        v.
Gordon Gross,
            Appellant.




          Brian Shiffrin, for appellant.
          Melvin Bressler, for respondent.




ABDUS-SALAAM, J.:
          In this appeal, we are asked to determine whether
defendant's trial counsel was ineffective.   Because counsel's
alleged failures were insufficient to overshadow her overall
meaningful representation of defendant, we hold that defendant
received effective assistance of counsel.

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                                 I.
          Defendant Gordon Gross was accused of child sexual
abuse, which resulted in him being indicted for course of sexual
conduct against a child in the first degree (see Penal Law §
130.75 [1] [b]) and endangering the welfare of a child (see Penal
Law § 260.10 [1]).   During trial, the child victim testified that
defendant subjected her to sexual abuse over a number of years,
including anal penetration.    She testified that she disclosed the
sexual abuse to a number of individuals, including her mother,
sister, school principal, and two police officers assigned to
investigate her allegations.   After this testimony, defendant's
counsel did not request a limiting instruction that the child's
statements of prior disclosures should not be considered in
determining the truth of the child's allegations.
          The People called as witnesses the child's mother,
sister, school principal, and the two officers.   During each
witness's testimony, defense counsel successfully objected when
the witness was asked a question intended to elicit an answer
regarding the specific statements of abuse the child disclosed to
that witness.   The People also called Dr. Danielle Thomas-Taylor,
a child sex abuse expert, who examined the child at the People's
request approximately three years after her last allegation of
sexual abuse.   Over defense counsel's objection, Dr.
Thomas-Taylor was permitted to testify that the child told her
that defendant sexually abused her by anal penetration.   Dr.


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Thomas-Taylor also described her physical examination, stating
that the child "had a generally normal physical examination."
Despite that conclusion, Dr. Thomas-Taylor opined that the normal
results of the child's physical examination did not negate the
possibility that the child was anally penetrated some time
before.   Specifically, she stated she would not expect to see
scarring after some years because the anus "heals very quickly,
within a day or two."
           During the People's summation, the prosecutor argued
that the key to determining that the child was telling the truth
was her prior consistent statements, referencing all the
prosecution witnesses who testified that the child had disclosed
to them her allegations of sexual abuse.   Following
deliberations, the jury found defendant guilty of course of
sexual conduct against a child in the first degree and
endangering the welfare of a child.    Defendant was sentenced to a
determinate term of 25 years in prison with 10 years of
postrelease supervision.   The judgment was affirmed by the
Appellate Division (see People v Gross, 79 AD3d 1660 [4th Dept
2010]) and his criminal leave application on his direct appeal
was denied by a Judge of this Court (see People v Gross, 16 NY3d
895 [2011]).
           Defendant moved for post-conviction relief pursuant to
CPL 440.10 (h).   Defendant argued that his state and federal
constitutional rights to effective assistance of counsel were


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violated by his trial counsel's failure to oppose the admission
and use of the prior consistent statements of the child which
bolstered her credibility.   Additionally, defendant argued that
his trial counsel was ineffective for failing to consult or
present testimony from a qualified independent medical expert to
support his contention that no sexual abuse occurred.   In an
affirmation from defendant's current attorney accompanying the
motion, the attorney indicates that he spoke with defendant's
trial counsel who stated that "she did not consult with or call
an expert because she had not anticipated that the People would
be permitted to have Dr. Thomas-Taylor testify as to what [the
child] told her or that the doctor would testify that the medical
finding had no significance."
           County Court denied the motion, holding that the
failure of defendant's trial counsel to object to the admission
of the child's prior disclosures did not render her ineffective.
Additionally, the court found that defendant's trial counsel was
not ineffective for failing to call an expert witness, noting
that defendant did not offer an expert opinion that some indicia
of sex abuse would have been likely.    Thus, based on the record
alone the court rejected defendant's arguments and denied his
motion.   The Appellate Division, with two Justices dissenting,
affirmed, concluding that the testimony regarding the child's
prior disclosures did not constitute improper bolstering because
it was not admitted for its truth but rather to demonstrate how


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the child disclosed the abuse, thereby commencing the
investigation into her allegations (see People v Gross, 118 AD3d
1383, 1384 [4th Dept 2014]).   Further, the court concluded that
defendant received meaningful representation despite his trial
counsel's failure to object to the prosecutor's summation
comments or to call a medical expert to testify on defendant's
behalf.   Therefore, the court concluded that trial counsel was
not ineffective.   The dissenting Justices voted to reverse.    In
their view, defendant's trial counsel's failure to object to
inadmissible testimony regarding the child's prior consistent
statements deprived him of his right to effective assistance of
counsel (see id. at 1386).


                                II.
           On a CPL 440.10 motion pursuant to subsection h, the
burden is on the defendant to demonstrate that "[t]he judgment
was obtained in violation of a right of the defendant under the
constitution of this state or of the United States" (CPL 440.10
[h]), here his right to effective assistance of counsel.    On an
ineffective assistance of counsel claim under the Sixth Amendment
to the United States Constitution, a defendant must demonstrate
that (1) his or her attorney committed errors so egregious that
he or she did not function as counsel within the meaning of the
United States Constitution, and (2) that counsel's deficient
performance actually prejudiced the defendant (see Strickland v


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Washington, 466 US 668, 687-688 [1984]).     New York's
constitutional requirement of effective assistance of counsel is
met when "the evidence, the law, and the circumstances of a
particular case, viewed in totality and as of the time of the
representation, reveal that the attorney provided meaningful
representation" (People v Benevento, 91 NY2d 708, 712 [1998]).
          Defendant argues that his trial counsel was ineffective
for failing to call an expert witness who could testify that the
absence of physical evidence here could indicate that the victim
was never anally raped by defendant.   He asserts that trial
counsel should have called an expert witness who could have
testified that the victim's allegations of painful anal rape
should have resulted in lasting physical trauma which could be
detected some years after the last allegation of anal
penetration.   As support, he points to three studies.    Defendant,
however, failed to provide a proper foundation for the courts to
consider these studies, as he did not include an affidavit by a
medical expert explaining the conclusions of the studies or how
those conclusions support his contentions.    He thus has failed to
meet his burden of demonstrating that his trial counsel was
ineffective for failing to call an expert under either the
federal or state standard.
          We have held on numerous occasions that counsel will
not be found ineffective where he or she had a strategic reason
for the failure complained of by defendant (see People v Barboni,


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21 NY3d 393, 405-406 [2013]).   Defendant's trial counsel
articulated reasons for not calling an expert witness, and those
reasons were arguably legitimate.      Therefore, defense counsel was
not ineffective.


                                III.
           The testimony of each of the prosecution witnesses here
was properly admitted into evidence as background information,
completing the narrative of how defendant came to be investigated
for sexually abusing the child.   Thus, the courts below properly
held that the statements did not constitute improper bolstering.
           "The term 'bolstering' is used to describe the
presentation in evidence of a prior consistent statement" (People
v Smith, 22 NY3d 462, 465 [2013]).      This Court has repeatedly
held that it is generally improper to introduce testimony that
the witness had previously made prior consistent statements, when
there is no claim of either prompt outcry or recent fabrication
(see People v Rosario, 17 NY3d 501 [2011]; see also People v
Fisher, 18 NY3d 964, 966 [2012]; People v McClean, 69 NY2d 426
[1987]).   In People v Smith, we recognized that such evidence
"may, by simple force of repetition, give the jury an exaggerated
idea of the probative force of a party's case"     (Smith, 22 NY3d
at 466).   A prior consistent statement may be admissible when it
is offered not for its truth, but for some other relevant
purpose, for example to assist in "explaining the investigative


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process and completing the narrative of events leading to the
defendant's arrest" (People v Ludwig, 24 NY3d 221, 231 [2014]).
             Our decision in People v Ludwig similarly concerned
allegations by the defendant that trial testimony improperly
bolstered the child victim's claims of sexual abuse.    In that
case, the child victim's brother testified that one day while he
and his sister -- the child victim -- were playing in the
backyard, the child victim stated that the backyard smelled like
something that happened with her dad.    After being questioned by
her brother as to the meaning of her statement, the child victim
stated that the backyard smelled like penis.    The brother made
the child victim go inside and tell their mother what she had
just said.    The brother was allowed to testify to those
statements over the defendant's objection.    This Court determined
that the brother's testimony was admissible as background
information that assisted with the investigative process.    So too
here, the testimony of the child's mother, sister, principal and
the two officers was admissible as necessary background
information to demonstrate what ultimately led to defendant's
arrest.   The testimony of those witnesses included nonspecific
statements that the child had made a disclosure and described
what steps they took after hearing the disclosure.
             In Ludwig, we acknowledged that "New York courts have
routinely recognized that 'nonspecific testimony about [a]
child-victim's reports of sexual abuse [does] not constitute


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improper bolstering [when] offered for the relevant, nonhearsay
purpose of explaining the investigative process'" and assisting
in the completion of the narrative of events which led to the
defendant's arrest (id. at 231, quoting People v Rosario, 100
AD3d 660, 661 [2d Dept 2012]).    Here, the testimony of the
child's mother, sister, principal and the two officers fulfilled
these legitimate nonhearsay purposes, and defense counsel's
objections to the testimony of the witnesses ensured that the
witnesses did not specifically repeat what the child told them.
          The majority of Dr. Thomas-Taylor's testimony as to the
child's specific allegations of sexual abuse was admissible under
People v Spicola (16 NY3d 441 [2011]).     In Spicola, we held that
testimony of a nurse-practitioner concerning the child's history
of sexual abuse was permissible testimony because the child's
statements to the nurse-practitioner "were germane to diagnosis
and treatment" and therefore "were properly admitted as an
exception to the hearsay rule" (16 NY3d at 451).    Applying
Spicola here, the trial court properly admitted Dr.
Thomas-Taylor's testimony.   The testimony explained why the child
was being examined by Dr. Thomas-Taylor and why the normal
results of the physical examination did not indicate that the
child had not been subjected to sexual abuse.    This background
information completed the narrative and was properly permitted
under the exception to the hearsay rule.    Moreover, defense
counsel lodged an objection to Dr. Thomas-Taylor's testimony


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concerning the child's history; however, that objection was
overruled.    Defense counsel can hardly be deemed ineffective on
this score.
             Trial counsel's failure to request that a limiting
instruction be given to the jury that the child's testimony
concerning the disclosures she made to other individuals should
not be accepted for the truth of her allegations, does not render
her ineffective in light of the totality of her representation of
defendant (see People v Benevento, 91 NY2d 708, 712 [1998]
[requiring examination of the totality of counsel's performance
to evaluate effectiveness]; People v Baldi, 54 NY2d 146, 147
[1981]).   Moreover, defense counsel was not ineffective for
failing to object to the prosecutor's summation comments
referencing the testimony of the witnesses to whom the victim had
disclosed.    Despite the dissent's argument to the contrary, the
failure to object to the prosecutor's statement on summation does
not negate the overall meaningful representation provided to
defendant by his counsel.    Defense counsel zealously advocated
for defendant, making multiple successful objections which
limited the testimony of several prosecution witnesses.
Additionally, defense counsel may have made a strategic choice
not to object during summation given that the witnesses were not
able to testify to the specifics of the child's allegations (see
People v Barboni, 21 NY3d 393, 405-406 [2013]).     She may have
felt that such an objection would not be worthwhile given the


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limited testimony elicited from the witnesses.    Such a strategic
decision does not support a finding of ineffectiveness (see
People v Barboni, 21 NY3d 393, 405-406 [2013]).


                                 IV.
            It is within the trial court's discretion to determine
whether a hearing on a CPL 440.10 motion should be ordered (see
People v Jones, 24 NY3d 623, 635 [2014]; People v Satterfield, 66
NY2d 796, 799 [1985]).   This Court, however, may review that
determination for an abuse of discretion (see Jones, 24 NY3d at
635).   No abuse occurred in this case, as the record clearly
indicates that defendant's trial counsel was not ineffective.
            Accordingly, the Appellate Division order should be
affirmed.




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People v Gordon Gross
No. 13




RIVERA, J. (dissenting):
             On constraint of People v Ludwig, (24 NY3d 221 [2014]),
I agree that defense counsel may not be considered ineffective
for failing to object during the People's case-in-chief to
testimony about the victim's disclosure of defendant's sexual
abuse.   However, the rule adopted in Ludwig is a narrow one,
justified on the theoretical assumption that such testimony is
admitted to assist the jury in understanding the events leading
to a defendant's arrest (id. at 231), and not for its truth about
the victim's allegations (id., citing People v Gregory, 78 AD3d
1246 [3d Dept 2010]).    Accordingly, while the prosecutor here
could elicit the testimony, he exceeded the bounds of permissible
summation by advocating that the victim's disclosure was proof of
the abuse.
             The prosecutor's exhortation to the jury was an
invitation to misuse the testimony, and was especially
prejudicial to the defense because the People lacked
corroborating physical evidence of the abuse, the victim was the
sole witness to defendant's actions, and the ultimate
determination of guilt turned on the victim's credibility.     Under
such circumstances, defense counsel's failure to timely object
and request an instruction directing the jury to ignore the


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prosecutor's argument constitutes ineffective assistance,
mandating reversal and a new trial.     Therefore, I dissent.
          The premise of Ludwig is that testimony from a witness
that the victim disclosed abuse is admissible for the "legitimate
nonhearsay purposes" of "explaining the investigative process and
completing the narrative of events leading to a defendant's
arrest" (id. at 231-232).   According to this reasoning, the
testimony is admissible solely "to depict for the jury the
circumstances attendant to the disclosure that triggered the
investigation" (id. at 232).    However, I continue to believe that
Ludwig was wrongly decided because, as the dissent in that case
explained, the majority's approach "eviscerates the hearsay rule
and allows wholesale circumvention of the prompt outcry rule by
countenancing the admission of prior consistent statements that
provide a 'narrative' or 'investigative purpose' even where the
investigative purpose is not in issue" (Ludwig, 24 NY3d at 235
[Lippman, C.J., dissenting]).   Notwithstanding the Ludwig
majority's determination to the contrary, "these statements are
obviously introduced to bolster the complainant's credibility and
establish the truth of the accusation" (id. at 236 [Lippman,
C.J., dissenting]), and does little to ensure the reliability of
the victim's testimony (id. at 237).
          The analytic error of Ludwig is compounded by that
majority's Court's failure to set appreciable limits on
"narrative" testimony.   The instant appeal is a prime example of


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the foreseeable evidentiary excesses made possible by the
holding, and why Ludwig is a dangerous precedent that should be
discarded.    According to the record, after the victim recounted
that she disclosed the abuse, the child's mother, sister, school
principal, and two police officers also testified that the victim
disclosed the abuse to each of them.     Yet, there is no
discernable explanation as to why five reaffirmations of the
victim's disclosure were necessary background information about
the investigation.    Nor is there a plausible reason for three
witnesses to testify similarly about the same-day disclosure to
the police when disclosure is unchallenged.    As this case
illustrates, the potential for evidence to cross the line from
"an explanation of the narrative" to improper bolstering of the
victim's testimony is increased by the sheer numerosity of
witnesses who testify that the victim disclosed.    Defendant does
not directly challenge the judge's evidentiary rulings, therefore
given the posture of the appeal, I agree that counsel is not
ineffective for limiting her objections to the specific details
of the abuse rather than type of serial testimony presented in
this case.
             Counsel's failure to object and request curative
instruction for the prosecutor's use of the testimony during
summation is a different matter.    The record establishes that the
prosecutor made the testimony of non-victim witnesses the central
theme of his argument that the victim's claims of abuse should be


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treated as fact.   Even within the confines of Ludwig, the
prosecutor's actions were improper because he relied on the
testimony for the impermissible purpose of establishing that the
defendant committed the acts as described by the victim.
          The prosecutor argued to the jury that the case turned
on whether the victim was telling the truth, and if the jurors
believed the victim, they had to return a guilty verdict.    He
asked rhetorically, why would the victim "tell strangers, tell
the police, me, you, [sic] grand jury" about the sexual abuse.
The prosecutor implored the jurors to consider "[w]hy would [the
victim] do this if it didn't happen, if it wasn't the truth."     To
persuade the jury that the abuse occurred, the prosecutor
emphasized that the victim repeatedly disclosed the abuse to
several different people, including in formal legal settings. The
prosecutor declared that
          "[t]his is about the fifth time she's talked
          about this . . . . According to her
          testimony, first time was June 25th to the
          police . . . . The next time, month later
          when she came to see me and then testified
          before the grand jury. And then she had
          again talked about this to the doctors. So
          again that, that will be about five times
          when she came here and told you what happened
          . . .[S]he's told the story or she's told
          give this, these facts a number of times."
Again, near the end of his summation, the prosecutor asked the
jury to consider why the victim would "go through all this, lie
to all these people if this didn't happen?"
          These excerpts leave no doubt that the prosecutor


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sought to bolster the credibility of the victim and establish the
fact of the abuse through the victim's repeated disclosure of her
allegations.   By arguing to the jury that it could base its
credibility determination on the fact that the victim disclosed
the abuse on several occasions to different people, and by
characterizing the victim's disclosures as statements of fact,
the prosecutor re-purposed the testimony and mischaracterized its
meaning.   In a case that hinged on the credibility of the victim,
defense counsel could only address the devastating impact of this
summation argument by objecting and requesting the judge instruct
the jurors that they could not rely upon the testimony in the
manner advocated by the prosecutor.
           Under these circumstances, counsel's failure to act
constituted egregious error that cannot be excused, as the
majority argues, as part of a reasonable defense strategy (maj
op, at 12).    The majority speculates that counsel discounted the
impact of summation because the non-victim testimony did not
include details of the abuse.   However, the prosecutor's focus on
the victim's repeated disclosure was the basis for arguing that
the abuse occurred.   The fact that the non-victim witness
testimony lacked details of the victim's allegations was
irrelevant to the prosecutor's point.   Thus, to counteract the
persuasive effect of the prosecutor's argument, defense counsel
had to lodge an objection and request that the judge instruct the
jury on the proper consideration to be accorded the testimony.


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Counsel did not take these necessary minimal steps, and as a
consequence her representation was ineffective, and denied
defendant a fair trial (People v Baldi, 54 NY2d 146 [1981]).
*   *   *   *   *   *   *   *    *      *   *   *   *   *   *   *   *
Order affirmed. Opinion by Judge Abdus-Salaam. Judges Pigott,
Stein and Fahey concur. Judge Rivera dissents in an opinion.
Chief Judge DiFiore and Judge Garcia took no part.

Decided February 18, 2016




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