AD2 order dated November 25, 2015, affirming judgment of conviction. Decision below: 133 AD3d 882, 20 NYS3d 409. Fahey, J., granted leave March 3, 2016.

ISSUE PRESENTED: Whether trial counsel was ineffective for not only failing to object to alleged “prompt outcry” testimony, but also eliciting that same damaging testimony on cross-examination. (Assigned counsel: Patricia Pazner & Lynn W.L. Fahey, Appellate Advocates, 111 John St., 9th Floor, NYC 10038.)

Issue before the Court: Whether trial counsel was ineffective for failing to object to “prompt outcry” testimony from a child sexual abuse victim?

 

Held: No, the trial record made it clear that defense counsel, reasonably believing that the evidence would come in anyway, chose to affirmatively exploit the inconsistencies in the victim’s outcries to portray the victim as a troubled teen.

 

CAL Observes: This unanimous decision appears to be correct, in that defense counsel did make clear during the trial that this would be his strategy.  No new ground covered here.