People v. Ambers

• Decision Date: 23 November 2015
• Docket Number: No. 165,165
• Citation: 22 N.Y.S.3d 400,43 N.E.3d 757,2015 N.Y. Slip Op. 08608,26 N.Y.3d 313
• Parties: The PEOPLE of the State of New York, Respondent, v. Nugene AMBERS, Appellant.
• Court: New York Court of Appeals Court of Appeals

26 N.Y.3d 313
43 N.E.3d 757
22 N.Y.S.3d 400
2015 N.Y. Slip Op. 08608

The PEOPLE of the State of New York, Respondent
v.
Nugene AMBERS, Appellant.

No. 165

Court of Appeals of New York.

Nov. 23, 2015.

Lynn W.L. Fahey, Appellate Advocates, New York City (Mark W. Vorkink of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens (Anastasia Spanakos, Ushir Pandit, Robert J. Masters, John M. Castellano and Nicoletta J. Caferri of counsel), for respondent.

OPINION OF THE COURT

ABDUS–SALAAM, J.

43 N.E.3d 758

On this appeal, we must decide whether defendant's trial counsel was ineffective for (1) failing to seek the dismissal of time-barred charges against defendant and (2) failing to object to certain statements by the prosecutor during her summation. For the following reasons, we hold that defendant's trial counsel was not ineffective and therefore the Appellate Division order should be affirmed.

I

Defendant Nugene Ambers was charged, in two felony complaints, with having committed various sex offenses

43 N.E.3d 759

against

two children. Specifically, as to the older child, defendant was charged with first- and second-degree course of sexual conduct against a child, second-degree rape, and endangering the welfare of a child. As to the younger child, he was charged with second-degree course of sexual conduct against a child and endangering the welfare of a child. During trial, both children testified, detailing their accounts of the sexual abuse they endured from defendant. The People called Dr. Jamie Hoffman–Rosenfeld, a child abuse pediatrician, who is an expert in the fields of pediatric medicine and child sexual abuse. She testified that she examined both children and in her medical opinion both girls “presented with a history of sexual abuse and [their] physical exam finding[s] ... neither proved or disproved that history.” Defendant testified on his own behalf. He denied having any sexual contact with the children. Defendant admitted that he became an alcoholic after he returned from a prior prison sentence, and drank “six or seven 40 ounce[ ]” bottles “of beer right after work,” and had “many blackouts.”

During the People's summation, the prosecutor stated that Dr. Hoffman–Rosenfeld concluded “that these children were sexually abused.” Defense counsel made an objection, the court sustained the objection and later gave a curative instruction to the jury stating “that Dr. Hoffman–Rosenfeld testified that she did not find any physical evidence to support the claim of sexual abuse in either [child]. She indicated that the lack of such physical evidence neither proves nor disproves that sexual abuse occurred.” The prosecutor also made a series of statements about defendant's alcoholism and stated that defendant abused the children because he was drunk. A number of those statements were made without objection. Defense counsel, however, did make an objection to one such comment, and the court issued a curative instruction stating that “neither [child] testified that the defendant was under the influence of alcohol at the time of any of the alleged acts of sexual abuse in this case.” During the People's summation, defendant twice moved for a mistrial; both of those requests were denied.

Defendant was convicted of course of sexual conduct against a child in the first degree, course of sexual conduct against a child in the second degree, rape in the second degree, and two counts of endangering the welfare of a child. On appeal, defendant argued that his trial counsel was ineffective. Specifically, defendant asserted that his trial counsel's failure to seek the dismissal of the endangering the welfare of a child counts

against him, based upon the expiration of the statute of limitations, rendered his counsel ineffective. Additionally, defendant argued that certain comments made by the prosecutor during summation misrepresented testimony, utilized rhetorical flourishes to elicit sympathy for the victims and prejudiced the jury against him.

The Appellate Division affirmed, holding that defendant failed to preserve his argument regarding the prejudicial nature of certain statements made by the prosecutor and that he was not deprived of effective assistance of counsel, stating that defendant “failed to demonstrate the absence of strategic or other legitimate explanations for counsel's alleged shortcoming” (see People v. Ambers, 115 A.D.3d 671, 672, 981 N.Y.S.2d 554 [2d Dept.2014] [internal quotation marks omitted] ). A Judge of this Court granted defendant's application for leave to appeal (see People v. Ambers, 23 N.Y.3d 1059, 994 N.Y.S.2d 318, 18 N.E.3d 1139 [2014] ).

II

A defendant has the right to receive reasonably effective assistance of

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counsel under the United States Constitution (see Strickland v. Washington, 466 U.S. 668, 687–688, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984] ). Under New York law, the 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 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998], quoting People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ). “The core of the inquiry is whether defendant received meaningful representation” (Benevento, 91 N.Y.2d at 712, 674 N.Y.S.2d 629, 697 N.E.2d 584 [internal quotation marks omitted] ). To demonstrate ineffective assistance of counsel, the defendant must show that he or she did not receive a fair trial because counsel's conduct was “egregious and prejudicial” (People v. Oathout, 21 N.Y.3d 127, 131, 967 N.Y.S.2d 654, 989 N.E.2d 936 [2013] ). Additionally, the defendant must overcome the strong presumption that defense counsel rendered effective assistance (see People v. Barboni, 21 N.Y.3d 393, 406, 971 N.Y.S.2d 729, 994 N.E.2d 820 [2013] ). Therefore, defendant must “demonstrate the absence of strategic or other legitimate explanations for counsel's failure” (id. at 405–406, 971 N.Y.S.2d 729, 994 N.E.2d 820 ). “[I]n ineffective assistance cases, counsel's subjective reasons for a decision are immaterial, so long as ‘viewed objectively, the transcript and the submissions reveal the existence of a trial strategy that might well have been pursued by a reasonably competent attorney’ ” (

People v. Evans, 16 N.Y.3d 571, 575–576, 925 N.Y.S.2d 366, 949 N.E.2d 457 [2011] [brackets and emphases omitted], quoting People v....