People v. Jones

• Decision Date: 10 February 2017
• Citation: 47 N.Y.S.3d 621,147 A.D.3d 1521
• Parties: The PEOPLE of the State of New York, Respondent, v. Eric B. JONES, also known as Erican Jones, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

147 A.D.3d 1521

47 N.Y.S.3d 621

The PEOPLE of the State of New York, Respondent,

v.Eric B. JONES, also known as Erican Jones, Defendant–Appellant.

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

Feb. 10, 2017.

Muldoon, Getz & Reston, Rochester (Gary Muldoon of Counsel), for Defendant–Appellant.

Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of Counsel), for Respondent.

PRESENT: WHALEN, P.J., CENTRA, DeJOSEPH, NeMOYER, AND TROUTMAN, JJ.

MEMORANDUM:

Defendant appeals from a judgment convicting him upon a jury verdict of sexual abuse in the second degree (Penal Law § 130.60[2] ) and two counts of course of sexual conduct against a child in the second degree (§ 130.80[1][b] ). Defendant's conviction arose from his alleged abuse of his girlfriend's daughter and another underage girl.

We reject defendant's contention that he was denied effective assistance of counsel. With respect to defense counsel's failure to obtain an expert witness, defendant failed to show that such testimony was available and that it "would have assisted the jury in its determination or that he was prejudiced by its absence" (People v. Smith, 126 A.D.3d 1528, 1530–1531, 6 N.Y.S.3d 870, lv. denied 26 N.Y.3d 1150, 32 N.Y.S.3d 64, 51 N.E.3d 575 [internal quotation marks omitted] ). With respect to defense counsel's failure to make a specific motion for a trial order of dismissal, we conclude that such a motion would have had little or no chance of success (see People v. Stultz, 2 N.Y.3d 277, 287, 778 N.Y.S.2d 431, 810 N.E.2d 883, rearg. denied 3 N.Y.3d 702, 785 N.Y.S.2d 29, 818 N.E.2d 671 ; People v. Horton, 79 A.D.3d 1614, 1616, 913 N.Y.S.2d 463, lv. denied 16 N.Y.3d 859, 923 N.Y.S.2d 421, 947 N.E.2d 1200 ), and we note that defendant has not challenged the legal sufficiency of the evidence on appeal. To the extent that defendant's contention is based upon off-the- record communications between defendant and counsel, it is properly the subject of a CPL article 440 motion (see People v. Weaver, 118 A.D.3d 1270, 1272, 988 N.Y.S.2d 346, lv. denied 24 N.Y.3d 965, 996 N.Y.S.2d 225, 20 N.E.3d 1005 ). With respect to the remaining instances of alleged ineffectiveness, defendant failed " ‘to demonstrate the absence of strategic or other legitimate explanations' for 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. Bank, 129 A.D.3d 1445, 1447, 12 N.Y.S.3d 673, affd.28 N.Y.3d 131, 42 N.Y.S.3d 651, 65 N.E.3d 680 ). Viewing the evidence, the law, and the circumstances of this case, in totality and as of the time of the representation, we conclude that defense counsel provided defendant with meaningful representation (see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 ).

We reject defendant's further contention that County Court abused its discretion in limiting his cross-examination of his girlfriend's daughter. Contrary to defendant's contention, the record establishes that the court's ruling was not based on the Rape Shield Law (CPL 60.42 ) but, rather, it was based on the relevance of the proposed testimony. "In determining issues of relevancy of evidence, trial courts possess latitude to admit or preclude evidence...