AD2 order dated March 5, 2014, affirming judgment of conviction. Decision below: 115 AD3d 671, 981 NYS2d 554. Abdus-Salaam, J., granted leave August 25, 2014. Argued October 15, 2015.

ISSUE PRESENTED: Ineffective assistance of trial counsel for failing, inter alia, to raise a statute of limitations objection to a misdemeanor count, to object to comments by the prosecutor on summation, or to request a mistrial or curative instructions. (Assigned counsel: Mark Vorkink and Lynn W.L. Fahey, Appellate Advocates, 111 John St., 9th Floor, NYC 10038.)

Issue: Whether counsel was ineffective for (1) failing to object to submission of time-barred lesser charge; and (2) failing to object to certain summation remarks by the prosecutor. 

 

Held: In a unanimous opinion, the Court held that defense counsel was not ineffective in either regard.  As to the time-barred charge, the record left open the possibility that defense counsel had a strategic reason for allowing the lesser charges of endangering the welfare of a child in order to allow the jury that option rather than the greater charges of rape and course of sexual conduct against a child.  In contrast to People v. Turner, where counsel had made other objections to submission of the time-barred lesser, here, “[t]here was no indication that counsel did not want a lesser offense charged. Defendant did not meet his burden of demonstrating absence of strategy.  As to the failure to object, the Court noted that counsel had lodged 30 objections, 15 of which were sustained, and that the court’s curative instructions ameliorated any potential prejudice. Counsel’s failure to make additional objections did not render him constitutionally ineffective. 

 

CAL Observes: This unanimous opinion appears a bit superficial.  Endangering the welfare of a child is not a lesser included offense of the higher counts charged, so it is difficult to understand how the jury could rationally have found defendant guilty only of that charge, and, in turn, how that could have informed counsel’s strategy in not objecting to its submission as time-barred. Moreover, the Court does not discuss defense counsel’s summation at all — arguably the best reflection of defense counsel’s strategy, leaving one to wonder whether counsel’s arguments might not have supported the Court’s reasoning.  Bottom line – unless counsel objected to the lesser on other grounds, an IAC claim grounded in counsel’s failure to object to its submission,  even on clear-cut, dispositive grounds such as statute of limitation, will not likely prevail (at least on direct appeal).