The People v. Gordon Gross

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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]).

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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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