Gersten v. Senkowski

Decision Date15 January 2004
Docket NumberNo. 03-MISC-0066(JBW).,No. 02-CV-3973(JBW).,02-CV-3973(JBW).,03-MISC-0066(JBW).
PartiesBen GERSTEN (00-A-0546), Petitioner, v. Daniel SENKOWSKI, Superintendent of Clinton Correctional Facility, Respondent.
CourtU.S. District Court — Eastern District of New York

Laurie S. Hershey, by Kevin J. Keating, and Georgia J. Hinde, Manhasset, NY, for Petitioner.

Denis Dillon, District Attorney, Nassau County by Karen Wigle Weiss, Assistant District Attorney, of Counsel, Mineola, NY, for Respondent.

MEMORANDUM, JUDGMENT & ORDER

WEINSTEIN, Senior District Judge.

                Table of Contents
                  I. Introduction ...................................................................91
                 II. Facts and Procedural History ...................................................91
                     A. Pretrial Proceedings ........................................................92
                     B. Trial .......................................................................92
                        1. The People's Case ........................................................92
                           a. The Daughter ..........................................................92
                           b. The Wife ..............................................................93
                           c. The Child Psychologist ................................................93
                           d. The Examining Physician ...............................................93
                           e. The Boyfriend .........................................................94
                        2. The Defense ..............................................................94
                     C. State Direct Appeals ........................................................94
                     D. State Collateral Attacks ....................................................94
                     E. Current Federal Habeas Proceedings ..........................................94
                        1. The Petition .............................................................94
                        2. The Hearing ..............................................................95
                           a. The Examining Physician ...............................................95
                           b. Trial Counsel .........................................................96
                III. Law ............................................................................96
                     A. AEDPA .......................................................................96
                     B. Exhaustion ..................................................................97
                     C. Procedural Bar ..............................................................98
                     D. Ineffective Assistance of Counsel ...........................................99
                        1. In General ...............................................................99
                        2. Failure to Consult with or Call an Expert Witness in Cases Involving
                             Child Sexual Abuse ....................................................100
                     E. Errors of State Law ........................................................101
                        1. In General ..............................................................101
                        2. Admission of Uncharged Crimes Testimony .................................102
                     F. Harmless Error .............................................................102
                 IV. Analysis of Claims ............................................................102
                     A. Ineffective Assistance of Counsel ..........................................102
                        1. Failure to Consult with or Call Expert Witnesses ........................102
                           a. Medical ..............................................................102
                           b. Psychological ........................................................104
                        2. Failure to Request a Frye Hearing .......................................105
                        3. Failure to Object to Uncharged Crimes Evidence ..........................105
                        4. Remaining Claims ........................................................106
                     B. Admission of Uncharged Crimes Testimony ....................................106
                     C. Other Claims ...............................................................106
                  V. Conclusion ....................................................................106
                
I. Introduction

Sexual abuse of a daughter by her father is a heinous crime. Here the trial record graphically details almost-nightly rapes and sodomizing of a young girl in her family home by her parent over many years. Such an accusation requires a skilled defense. See Eze v. Senkowski, 321 F.3d 110 (2d Cir.2003); Pavel v. Hollins, 261 F.3d 210 (2d Cir.2001); Lindstadt v. Keane, 239 F.3d 191 (2d Cir.2001) (importance of effective representation for defendants in child sexual abuse prosecutions). Since such cases frequently hinge on the credibility of the child, the Court of Appeals for the Second Circuit has declared that "defense counsel is obliged, wherever possible, to elucidate any inconsistencies in the complainant's testimony, protect the defendant's credibility, and attack vigorously the reliability of any physical evidence of sexual contact between the defendant and the complainant." Eze, 321 F.3d at 112.

Whether these standards were met in this case presents a troubling question. For the reasons stated below, it is answered in the negative. The state trial and appellate record and a hearing in this court support the conclusion that trial counsel failed his client.

Petitioner, a law school graduate who passed the New York Bar examination but apparently never practiced as an attorney, was charged with the sodomy and sexual abuse of his daughter. A bench trial, insisted upon by petitioner in opposition to his attorney's advice, resulted in conviction on all charges and a lengthy prison term.

Trial counsel failed to consult with or call an expert medical witness regarding the physical indicia of sexual abuse. Had he done so he would have been in a position to rebut critical aspects of the testimony of the People's medical expert at trial, significantly calling into question whether the physical examination of the daughter revealed penetrative trauma to her vagina and anus. In light of the daughter's allegations of continuing rape and sodomy over a period of years, the absence of physical indicia of such abuse would necessarily have been troubling to a trier of fact. Counsel's unexplained and unreasonable failure to present this and other potentially exculpatory evidence significantly undermines confidence in the outcome of the trial.

II. Facts and Procedural History

Petitioner was charged with six counts of sodomy in the first degree, two counts of sexual abuse in the first degree, and one count of endangering the welfare of a child. The acts charged occurred during the period from March 1995 to December 1998 when the daughter was between ten and thirteen years old. He was convicted on all nine counts. The trial court imposed a sentence of consecutive indeterminate terms of imprisonment of twelve and one-half to twenty five years on the first three counts of sodomy in the first degree, concurrent indeterminate terms of imprisonment of twelve and one-half to twenty-five years on the remaining three counts of sodomy in the first degree, concurrent determinate terms of incarceration of seven years on each sexual abuse conviction, and a concurrent sentence of one year imprisonment for endangering the welfare of a child. He was designated a sex offender pursuant to the Sex Offender Registration Act. See N.Y. Correction L., art. 6-C. The lengthy imprisonment (under probable high risk of physical harm if other prisoners become aware of his crime) and the lifetime legal and social stigmas constitute a heavy punishment.

A. Pretrial Proceedings

Prior to the commencement of trial, a Ventimiglia hearing was held. See People v. Ventimiglia, 52 N.Y.2d 350, 438 N.Y.S.2d 261, 420 N.E.2d 59 (1981) (providing for a hearing in which the court assesses the probative force and prejudicial effect of any uncharged crimes sought to be introduced at trial). The prosecution sought to introduce, as part of the People's direct case, evidence that petitioner (1) began sexually abusing his daughter when she was five years old — years before the charged crimes occurred — and that the abuse escalated to petitioner forcing her to perform oral sex on him when she was seven years old; and (2) forced his daughter to have vaginal intercourse with him twice during November 1998, when she was thirteen years old, at his mother's apartment. These crimes were not charged in the indictment.

The prosecution argued that this evidence was relevant in establishing the forcible compulsion element of sodomy in the first degree and in showing a pattern or course of conduct by petitioner. Defense counsel opposed the prosecutor's application and argued for preclusion of all evidence of uncharged crimes.

The court ruled that the prosecution could introduce as part of the People's direct case, but solely for the purpose of permitting the court to fully understand the victim's testimony, evidence that petitioner began sexually abusing his daughter when she was five. The court also permitted the prosecution to introduce evidence that petitioner forced his daughter to have vaginal intercourse with him on two occasions in November 1998. It stated that it would consider these acts only as they pertained to the daughter's state of mind, to the medical evidence presented, and to the timing of the daughter's disclosure of the abuse.

B. Trial
1. The People's Case
a. The Daughter

At trial, petitioner's daughter gave detailed testimony of her father's sexual abuse. She testified that, beginning when she was five years old, her father began entering her bedroom at night and touching her on her chest and between her legs. When she was seven years old, he began inserting his penis into her mouth and having anal intercourse with her. He...

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