People v. Burgos

• Decision Date: 30 December 2011
• Citation: 2011 N.Y. Slip Op. 09731,937 N.Y.S.2d 483,90 A.D.3d 1670
• Parties: The PEOPLE of the State of New York, Respondent, v. David BURGOS, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

2011 N.Y. Slip Op. 09731
90 A.D.3d 1670
937 N.Y.S.2d 483

The PEOPLE of the State of New York, Respondent,
v.
David BURGOS, Defendant–Appellant.

Supreme Court, Appellate Division, Fourth Department, New York.

Dec. 30, 2011.

[937 N.Y.S.2d 484]

Bruce R. Bryan, Syracuse, for Defendant–Appellant.

William J. Fitzpatrick, District Attorney, Syracuse (Victoria M. White of Counsel), for Respondent.

PRESENT: SCUDDER, P.J., CENTRA, CARNI, LINDLEY, AND MARTOCHE, JJ.

MEMORANDUM:

[90 A.D.3d 1670] Defendant appeals from a judgment convicting him following a jury trial of course of sexual conduct against a child in the first degree (Penal Law § 130.75[1][b] ) and endangering the welfare of a child (§ 260.10[1] ). By its verdict, the jury found that defendant sexually abused his former girlfriend's daughter from the time the child was 8 years old until she was almost 13 years old. We reject defendant's contention that he was denied effective assistance of counsel based upon, inter alia, defense counsel's failure to call a medical expert to testify regarding the absence of physical evidence of sexual abuse. It is well established that, “[t]o prevail on a claim of ineffective assistance of counsel, it is incumbent on defendant to demonstrate the absence of strategic or other legitimate explanations for counsel's failure to” call such a witness ( People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698), and he failed to do so here. Indeed, given the delay between the last act of abuse and the victim's disclosure, i.e., a period in excess of one year, and given the fact that there was never any vaginal penetration, it was not likely that there would be physical evidence of abuse. We note in any event that defendant relies on Gersten v. Senkowski, 426 F.3d 588, cert. denied 547 U.S. 1191, 126 S.Ct. 2882, 165 L.Ed.2d 894 in support of his contention, but we conclude that his reliance thereon is misplaced. In

[937 N.Y.S.2d 485]

that case, the petition for a writ of habeas corpus was granted based, in part, upon the failure of petitioner's trial attorney to obtain a medical expert to challenge the testimony of the People's expert that a physical examination of the victim showed signs of sexual abuse. Here, unlike in Gersten, the People offered no such expert testimony regarding signs of [90 A.D.3d 1671] abuse. We have examined the remaining allegations of ineffective assistance of counsel raised by defendant and conclude that they lack merit ( see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).

We also reject defendant's contention that the People failed in the indictment and superseding indictment to specify the time, date and place of the...