THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. GORDON GROSS DEFENDANT APPELLANT (2014)

MEMORANDUM AND ORDER

Appeal, by permission of a Justice of the Appellate Division of the Supreme Court in the Fourth Judicial Department, from an order of the Wayne County Court (John B. Nesbitt, J.), dated March 27, 2013.   The order denied the motion of defendant pursuant to CPL 440.10.

It is hereby ORDERED that the order so appealed from is affirmed.

Although not specifically contended by defendant, our dissenting colleagues conclude that defense counsel was ineffective by failing to object to the testimony of the victim that she reported to her mother at age six that defendant had touched her in a sexual manner;  that she reported to her sister at age 14 that defendant had raped her;  and that she told a police witness and the grand jury what she told the jury during her testimony.   We respectfully disagree with that conclusion.   Although the dissent correctly notes that the repetition of prior consistent statements may “give to a jury an exaggerated idea of the probative force of a party's case” (People v. Smith, 22 NY3d 462, 466), here, the victim's testimony constituted a narrative of events.   Indeed, she did not repeat the specific allegations of her testimony, i.e., that defendant had engaged in anal penetration (cf.  People v. McNeill, 107 AD3d 1430, 1431, lv denied 22 NY3d 957).   In light of defense counsel's opening statement that the relationship between defendant, the victim and the victim's mother was such that it could “cause someone to make fake allegations,” the narrative of events was relevant.   We also disagree with our dissenting colleagues that defense counsel's failure to object to the prosecutor's remarks during summation referencing that testimony constitutes ineffective assistance of counsel.   Because the remarks were a fair response to defense counsel's summation challenging the credibility of the victim and her motivation for making the accusations (see People v. Martinez, 114 AD3d 1173, 1173), we conclude that the failure of defense counsel to object to those comments does not constitute ineffective assistance of counsel (see id. at 1174).

We conclude that the court properly denied the motion inasmuch as the record establishes that defendant was provided with meaningful representation (see generally People v. Baldi, 54 N.Y.2d 137, 147).   Although we agree with defendant that defense counsel lacked any strategic or reasonable basis for her failure to object when the expert witness repeated the specific allegations that defendant had anally penetrated her (cf.  People v. Spicola, 16 NY3d 441, 451, cert denied _ U.S. _, 132 S Ct 400;  see generally People v. Ortega, 15 NY3d 610, 618), we nevertheless conclude that the single error in an otherwise competent representation was not so “egregious and prejudicial as to compromise [the] defendant's right to a fair trial” (People v. Caban, 5 NY3d 143, 152;  cf.  People v. Turner, 5 NY3d 476, 480–481).   Defense counsel made effective opening and closing statements challenging the motivation and credibility of the victim;  effectively cross-examined the prosecution witnesses;  and presented the testimony of several witnesses, including defendant, who contradicted specific details of the victim's testimony.

In our view, the pediatrician's testimony impermissibly bolstered the victim's trial testimony.   The victim's statement to the pediatrician obviously does not constitute a prompt outcry, and the evidence was not offered by the People to rebut a claim of recent fabrication (see generally People v. Rosario, 17 NY3d 501, 512–513).   Moreover, and contrary to the People's contention, the victim's statements to the pediatrician were not necessary for diagnosis and treatment inasmuch as the pediatrician provided no treatment to the victim (cf.  People v. Spicola, 16 NY3d 441, 451, cert denied _ U.S. _, 132 S Ct 400).

If defense counsel's failure to object to the pediatrician's testimony on the proper grounds were her only failing, perhaps it could be said that this single error was not so “egregious and prejudicial as to compromise [the] defendant's right to a fair trial” (People v. Caban, 5 NY3d 143, 152;  see People v. Turner, 5 NY3d 476, 480).   But defense counsel also failed to object to (1) the victim's testimony that, when she was five or six years old, she told her mother that defendant was touching her sexually;  (2) the victim's testimony that, on May 15, 2008, she told her sister that defendant raped her;  (3) the victim's testimony that, while in her principal's office on May 16, 2008, she told a detective the same thing that she told the jury, and that she then showed an investigator the location of the field where the “sexual abuse” occurred;  and (4) the victim's testimony that she told the aforementioned pediatrician what happened with defendant, and that the pediatrician then examined her vagina and anus.

It is well settled that “the testimony of a witness may not be corroborated or bolstered by evidence of prior consistent statements made before trial” (People v. McClean, 69 N.Y.2d 426, 428;  see People v. Buie, 86 N.Y.2d 501, 509–511;  People v. McDaniel, 81 N.Y.2d 10, 16).   The reason for the rule against the admission of prior consistent statements is that “an untrustworthy statement is not made more trustworthy by repetition” (McClean, 69 N.Y.2d at 428;  see People v. Seit, 86 N.Y.2d 92, 95).   As the Court of Appeals has reiterated, “the admission of prior consistent statements may, by simple force of repetition, give to a jury an exaggerated idea of the probative force of a party's case” (People v. Smith, 22 NY3d 462, 466).   As noted, evidence of prior consistent statements alleging sexual abuse may be admitted under the prompt outcry rule or to rebut a claim of recent fabrication (see Rosario, 17 NY3d at 512–513), but neither exception to the general rule applies to any of the above testimony, and we can discern no strategic reason for defense counsel's failure to object to the inadmissible evidence.

We note in addition that the victim's prior consistent statements—to her mother, her sister, the police, and the pediatrician—were relied upon heavily by the prosecutor during his summation, without objection by defense counsel.   After recounting each prior consistent statement, the prosecutor argued in sum and substance that, because the victim had told so many people on so many occasions that defendant had raped her, she must be telling the truth.   It is clear from the summation that the victim's prior consistent statements were used by the People to establish the truth of the matters asserted therein, and not for any ancillary purpose.

We also respectfully disagree with the majority that the prior consistent testimony offered by the victim was admissible because it constituted a narrative of events.   We found no cases that recognize a narrative exception to the rule against the admission of prior consistent statements, and such an exception, if created, would swallow the rule altogether.   Although testimony regarding out of court statements that complete the narrative by “provid[ing] background information” does not constitute inadmissible hearsay on the theory that such testimony is not offered for the truth of the matters asserted (People v. Tosca, 98 N.Y.2d 660, 661), the testimony at issue here did not complete the narrative;  instead, the testimony merely repeated the narrative, which was that defendant sexually molested the victim.

In any event, the motion court, in denying defendant's CPL 440.10 motion, did not rule that the prior consistent statements in question were admissible to explain the narrative of events.   The court determined that any “error was harmless” because the jurors “would expect that a witness alleging to be a victim in a sex abuse case would have made some disclosures prior to trial,” and because there may have been a strategic reason for defense counsel's failure to object to the testimony.   Thus, in our view, we cannot affirm the instant order on the ground that the evidence was admissible in the first instance (see CPL 470.15[1];  People v. Concepcion, 17 NY3d 192, 196;  People v. LaFontaine, 92 N.Y.2d 470, 474).

We would therefore reverse the order denying defendant's CPL 440.10 motion and grant him a new trial.

Frances E. Cafarell

Clerk of the Court