People v. Elliott
| Decision Date | 07 May 2010 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Jonathan ELLIOTT, Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
Wyoming County-Attica Legal Aid Bureau, Inc., Warsaw (Kevin G. Van Allen of Counsel), for Defendant-Appellant.
Thomas E. Moran, District Attorney, Geneseo (Eric R. Schiener of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., SMITH, PERADOTTO, LINDLEY, AND SCONIERS, JJ.
On appeal from a judgment convicting him upon a jury verdict of three counts of use of a child in a sexual performance (Penal Law § 263. 05), defendant contends that the evidence is legally insufficient to support the conviction because the sexual performances were not exhibited before an audience but, rather, were observed by defendant alone. Defendant failed to preserve that contention for our review inasmuch as he failed to renew his motion for a trial order of dismissal on that ground after presenting evidence ( see People v. Hines, 97 N.Y.2d 56, 61, 736 N.Y.S.2d 643, 762 N.E.2d 329, rearg. denied 97 N.Y.2d 678, 738 N.Y.S.2d 292, 764 N.E.2d 396). Viewing the evidence in light of the elements of the crime as charged to the jury ( see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we reject defendant's further contention that the verdict is against the weight of the evidence ( see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).
We also reject the contention of defendant that he was denied effective assistance of counsel ( see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400). With respect to defense counsel's failure to object to certain derogatory testimony concerning defendant's drug use and corporal punishment of the children in question, defendant failed " 'to demonstrate the absence of strategic or other legitimate explanations' for [defense] counsel's alleged shortcomings"( People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584; see People v. Douglas, 60 A.D.3d 1377, 875 N.Y.S.2d 723, lv. denied 12 N.Y.3d 914, 884 N.Y.S.2d 695, 912 N.E.2d 1076). The record does not support defendant's contention that defense counsel failed to conduct an adequate investigation into the reliability of child abuse accommodation syndrome. In any event, even assuming, arguendo, that defense counsel could have presented alternative psychological theories to the jury, we conclude that...
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