The People v. Gordon Gross

47 N.E.3d 738, 26 N.Y.3d 689, 27 N.Y.S.3d 459
CourtNew York Court of Appeals
DecidedFebruary 18, 2016
Docket13
StatusPublished
Cited by50 cases

This text of 47 N.E.3d 738 (The People v. Gordon Gross) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
The People v. Gordon Gross, 47 N.E.3d 738, 26 N.Y.3d 689, 27 N.Y.S.3d 459 (N.Y. 2016).

Opinions

OPINION OF THE COURT

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.

L

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 and 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 and 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 [692]*692witness. 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. 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 (1) (h). Defendant argued that his state and federal constitutional rights to effective assistance of counsel were 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 nor 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.”

[693]*693County 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 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).

IL

On a CPL 440.10 motion pursuant to subdivision (1) (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 [1] [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 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]).

[694]*694Defendant 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.

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Cite This Page — Counsel Stack

Bluebook (online)
47 N.E.3d 738, 26 N.Y.3d 689, 27 N.Y.S.3d 459, Counsel Stack Legal Research, https://law.counselstack.com/opinion/the-people-v-gordon-gross-ny-2016.