People v Maxey |
2015 NY Slip Op 05357 [129 AD3d 1664] |
June 19, 2015 |
Appellate Division, Fourth Department |
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
The People of the State of New York, Respondent, v Joseph Maxey, Jr., 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 4
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 [2005]). 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 [*2]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 [1981]).
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 [2014]). 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 [2014], lv denied 23 NY3d 1044 [2014]), and "did not exceed the bounds of legitimate advocacy" (People v Miller, 104 AD3d 1223, 1224 [2013], lv denied 21 NY3d 1017 [2013] [internal quotation marks omitted]). Present—Scudder, P.J., Smith, Sconiers, Valentino and DeJoseph, JJ.