Defendant Richard R. ("Defendant" or "Richard") brings this motion pursuant to Criminal Procedure Law �� 440.10 (1)(f) and (1)(h) to vacate his judgment of conviction for which he was sentenced in June 2007. Defendant also seeks a hearing on the issues raised if the requested relief is not granted on the papers, and production of Defendant at any hearing to be conducted for the purpose of determining this motion. [*2]

The charges for which Richard was convicted center around his unlawful sexual contact with his then five year old daughter. Defendant's daughter, age seven at the time of trial, testified at the trial and was a principal witness for the People. The mother of the child victim, Richard's ex-wife, also testified for the People. Richard testified on his own behalf and, in essence, denied the charges. On December 15, 2006, Defendant was convicted after a jury trial of the Class B felony of a Course of Sexual Conduct Against a Child in the First Degree (PL � 130.75), the Class E felony of Incest in the Third Degree (PL 255.25) and the Class A Misdemeanors of Assault in the Third Degree (PL � 120.00 [1]) and Endangering the Welfare of a Child (PL � 260.10 [1]). Richard was sentenced by the Honorable Rory Bellantoni on June 18, 2007 to a determinate term of 20 years in state prison, and remains incarcerated on that judgment.

The instant motion is submitted on Defendant's behalf by his present counsel, Neal D. Futerfas, who was not Richard's trial attorney. Mr. Futerfas represented Defendant in connection with his unsuccessful post-trial motion pursuant to CPL � 330 to set aside the verdict, and is also Defendant's counsel in connection with his pending direct appeal from that verdict.

The thrust of the instant motion is Defendant's claim that he received ineffective assistance of counsel based upon errors and omissions, prior to and during the trial, of his then attorney, Matthew Mazzamurro ("Mazzamurro" or "Counsel"). Such purported errors and omissions principally pertain to Counsel's alleged failure to consult with or call as witnesses medical experts with an eye toward contradicting the testimony of the People's trial medical experts and to impugn the testimony of the child victim. In connection with the Defendant's post-trial motion before Judge Bellantoni to set aside the jury's verdict, Mazzamurro submitted an affidavit in which he indicated that while he did conduct some unspecified "independent research," he did not consult with expert witnesses, and failed to call his own expert witnesses to testify on Richard's behalf. As the record herein reveals and as both parties concede, the People's evidence at trial consisted primarily of the testimony of the child victim, her mother, and medical experts and their review of their examination of the victim. No direct physical evidence linking Richard to the acts alleged, such as DNA results, or third party eyewitness testimony was adduced.

In support of the instant motion, Defendant submitted his own affidavit and the affidavits of Dr. Lawrence Ricci and Dr. Maggie Bruck. Dr. Ricci, a forensic pediatrician, stated in essence that his review of the medical evidence with respect to the victim was exculpatory as to Richard. His review revealed a normal physiognomy - - that is, the victim's anatomy was in the normal range and did not display overt signs of abuse. He further opined that the relevant medical literature did not support the conclusion reached by the People's trial medical expert, Dr. Jennifer Canter - - the forensic pediatrician who had examined the victim - - to the effect that the victim's physical condition that Dr. Canter observed was "highly specific" for "blunt force. . . penetrating trauma". In short, Dr. Ricci concluded that the victim had not been sexually abused in the manner described at trial by Dr. Canter. In her affidavit, Dr. Bruck - - a forensic psychologist - - disputed much of the testimony offered by the psychiatrist Dr. Anne Meltzer, the People's other medical expert witness. Dr. Meltzer testified at trial as to Child Sexual Abuse Accommodation Syndrome ("CSAAS") in an effort to explain the child victim's reticence to promptly report and thereafter testify as to the manner and extent of the alleged abuse, and to [*3]thus bolster the victim's testimony. Dr. Bruck contends that Dr. Meltzer's expert testimony was not supported by the current scientific literature, but instead was based upon her subjective clinical opinions, that Dr. Meltzer's theories and conclusions were flawed, and that her testimony would have been easily refuted by a competent expert witness had one been called by the defense.

In addition to Counsel's alleged failure to consult with experts concerning the prosecution's medical evidence in order to effectively cross-examine the prosecution's witnesses, and his failure to retain defense experts to call as witnesses for Richard in order to contradict the People's experts, Defendant advances several other grounds for the relief sought by the instant motion. Such purported grounds relate, in the main, to Counsel's defense strategy and trial tactics, and include the following claims: that Counsel failed to object to or seek appropriate relief regarding allegedly improper questioning by the People and the Court; failed to properly or effectively cross-examine the People's witnesses; failed to properly or effectively present or question his own witnesses; failed to properly propose a "Sandoval Compromise" with respect to Defendant's criminal record; failed to seek a "Frye" hearing regarding the proposed testimony of Dr. Meltzer; interposed improper pre-trial motions; failed to show a motive or reason for the victim's mother and/or other parties to fabricate the charges and for the child victim to lie about allegedly being sexually abused by the Defendant; failed to use at trial records from prior Family Court proceedings in Westchester and Putnam Counties; failed to make proper opening and closing statements; failed to present a cogent defense theory; failed to preserve critical issues; and failed to obtain the testimony and records of the child's pediatrician. Based on the alleged failures by trial counsel both on and off the trial record, Defendant argues that Mazzamurro's performance constituted ineffective assistance of counsel under the standards established by the federal courts as well as the courts of this state.

The People oppose Defendant's motion and maintain that any omissions or errors by trial counsel were the result of tactical, strategic decisions by competent counsel and therefore do not provide a valid basis to vacate Defendant's judgment of conviction. The People further dispute Defendant's contention that the failure by Counsel to consult with or call defense medical experts constituted ineffective assistance of counsel, and argue that such failure may well have been caused by unspecified difficulties that counsel encountered in his search for an expert who could plausibly contradict the People's evidence and thereby change the course of the trial. Moreover, the People argue that Mazzamurro did in fact contact Dr. Canter before trial, as well as two other doctors.

Discussion and Conclusions.

Defendant contends that Counsel's performance, before and during his trial, amounted to ineffective assistance of counsel and denied him of his right to a fair trial under both New York and federal constitutional standards. Under New York law, the Court must determine whether "the evidence, the law, and the circumstances of [the] particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation." (People v. Hull, 71 AD3d 1336, 1338 [3d Dept. 2010], quoting People v. Benevento, 91 NY2d 708, 712 (1998); People v. Baldi, 54 NY2d 137 [1981]). In order to prevail on an ineffective assistance claim under the federal standard, a defendant must prove "both that counsel's representation fell below an objective standard of reasonableness measured under prevailing [*4]professional norms" and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Graham v. Portuondo, 732 F. Supp. 2d 99, 114 [E.D.NY, 2010] where the Court granted federal habeas corpus relief on the ground of ineffective assistance of trial counsel; Strickland v. Washington, 466 U.S. 668 [1984]).

As the People correctly maintain, under both federal and state standards, a defense attorney's mere error in judgment in choosing a particular trial strategy that results in a consequence he or she did not intend - - a guilty verdict - - is not alone sufficient to constitute ineffective assistance of counsel. After all, a defendant is only entitled to meaningful, not invariably successful, representation. And the standard of meaningful representation will be met as long as counsel's trial strategy and tactics are objectively reasonable and diligently pursued. As the Court of Appeals stated in the leading New York case of People v. Baldi, 54 NY2d 137, 146-147 (1981),

"Our most critical concern in reviewing claims of ineffective counsel is toavoid both confusing true ineffectiveness with mere losing tactics andaccording undue significance to retrospective analysis. It is always easywith the advantage of hindsight to point out where trial counsel went awryin strategy. But trial tactics which terminate unsuccessfully do notautomatically indicate ineffectiveness. So long as the evidence, the law,and the circumstances of a particular case, viewed in totality and as of thetime of the representation, reveal that the attorney provided meaningfulrepresentation, the constitutional requirement will have been met,"(Emphasis added).

See also Strickland v. Washington, 466 U.S. 668, 689 (1984) (In evaluating a claim of ineffective assistance in the federal context, the Court stated that "[j]udicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable."); People v. Jackson, 52 NY2d 1027 (1989).In the instant case, a review of the record reveals that the vast majority of the alleged errors of Mazzamurro as cited by Defendant fall into the category of arguably reasonable trial strategy and tactics gone awry. Accordingly, based on the papers submitted and the Court's evaluation of the conduct of Counsel before and during the trial, the Court finds that Richard was afforded meaningful representation to satisfy both constitutional prescriptions, and no hearing is required except with respect to one area of pre-trial preparation and trial tactics and strategy - - medical expert testimony.

In this type of criminal case involving sexual conduct - - especially when the veracity of a child witness is at issue - - one particular type of evidence has been held to be sui generis in evaluating the propriety of a counsel's representation: expert medical testimony. Given the "centrality of expert testimony" (Gerstein v. Senkowski, 426 F.3d 588, 607 [2d Cir. 2005]) in assisting the jury in determining whether the very act complained of physically could or did ocurr, as well as the reliability of a child witnesses's testimony from a psychological perspective, courts have held that a defense counsel's failure to call an expert or experts, if available, as witnesses in the defense case or to, at minimum, engage in a meaningful consultation with such [*5]experts in order to prepare for cross-examination of the prosecution's medical witnesses will oftentimes, in and of itself, amount to a lack of meaningful representation. The application by subsequent courts of the leading United States Supreme Court case of Strickland v. Washington, 466 U.S. 668 (1984) to such cases so shows.

Strickland established the standard for determining whether a defendant has been afforded effective assistance of counsel under the Sixth Amendment to the United States Constitution. As articulated by Justice Brennen, the standard of ineffective assistance - - easy to state but often difficult to apply - - is as follows:

"First, the defendant must show that counsel's performance was deficient.This requires showing that counsel made errors so serious that counsel wasnot functioning as the "counsel" guaranteed the defendant by the SixthAmendment. Second, the defendant must show that the deficientperformance prejudiced the defense. This requires showing that counsel'serrors were so serious as to deprive the defendant of a fair trial, a trialwhose result is reliable." Id. at 687.

The Strickland court acknowledged that in assessing whether counsel has successfully discharged his or her duty to effectively represent his or her client, courts should accord great deference to defense counsel and "must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." (Id. at 690). Nonetheless, the Court emphasized that counsel had not only an obligation to zealously represent his or her client during the trial, but to "make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." (Id. at 691). In applying the state standard, New York State courts have undertaken a similar analysis, although under the framework of whether a defendant received "meaningful representation" in light of the totality of the circumstances - - which include, inter alia, whether counsel conducted an adequate investigation of the facts. See, e.g., People v. Baldi, 54 NY2d 137, 147 (1981).

In the leading case of Gersten v. Senkowski, 426 F.3d 588 (2d Cir. 2005), the Second Circuit applied the Strickland rubric to the particular facts that obtain in a sex abuse case involving a minor. In Gersten, as here, the charges centered around illicit sexual contact between a father and his minor daughter, age nine. Defendant waived his jury trial rights and was convicted after a bench trial. Similar to the instant case, the prosecution called two medical experts as trial witnesses: a medical doctor who had conducted a physical examination of the alleged victim after the alleged abuse was revealed, and a child psychologist who testified as an expert as to a child's psychological reactions to sexual abuse. The alleged victim testified, as did her mother. Defense counsel called no witnesses, and while he did cross-examine the People's medical experts, there was no indication that counsel had consulted any physicians or psychologists to assist him in that task.

Defendant Gerstein was convicted after trial. When his direct appeal failed, Gersten brought a CPL � 440 motion predicated on alleged ineffective assistance of counsel. When that motion was denied by the Nassau County Court, Gersten brought a petition for a federal writ of habeas corpus. The federal district court (per Judge Jack Weinstein) granted defendant's writ and ordered a new trial because there "is a reasonable probability that petitioner would not have been convicted had defense counsel conducted an adequate examination into the medical evidence and [*6]called an expert to testify," and therefore the County Court's "failure. . . to consider the importance of this omitted expert testimony in denying petitioner's motion to vacate the judgment of conviction" was "an unreasonable application of the Strickland standard." (Id. at 606).

Focusing largely upon counsel's failure to call or meaningfully consult with potentially favorable medical experts, the Second Circuit applied the Strickland standard to the special case of the child victim sex abuse prosecution - - where medical evidence is often determinative - - and affirmed. As the Court stated,

In order to prevail on a Sixth Amendment ineffectiveness claim, apetitioner must prove (1) that counsel's representation "fell below anobjective standard of reasonableness" measured under "prevailingprofessional norms," Strickland, 466 U.S.at 688, 104 S. Ct. 2052, and (2)that "there is a reasonable probability that but for counsel's unprofessionalerrors, the result of the proceeding would have been different", id, at 694,104 S. Ct. 2052, "[S]trategic choices made by counsel after thoroughinvestigation . . . are virtually unchallengeable." id. at 690, 104 S. Ct. 2052,and there is a strong presumption that counsel's performance falls "withinthe wide range of reasonable professional assistance," id. At 689-90, 104 S.Ct. 2052. But counsel has a duty to make reasonable investigations, and adecision not to investigate will be reasonable only "to the extent thatreasonable professional judgments support the limitations on investigation."Id at 690-91, 104 S. Ct. 2052. In sexual abuse cases, because of the centralityof medical testimony, the failure to consult with or call a medical expert isoften indicative of ineffective assistance of counsel . . . This is particularly sowhere the prosecution's case, beyond the purported medical evidence ofabuse, rests on the credibility of the alleged victim, as opposed to directphysical evidence such as DNA, or third party eyewitness testimony. (Id. at607; emphasis added).

In the context of his CPL 440 motion, Gerstein adduced affidavits of medical experts, which led the Circuit Court to conclude that had counsel conducted "an adequate pre-trial investigation of the evidence," counsel would likely "have discovered that exceptionally qualified medical experts could be found" in both areas to which the prosecution experts testified to provide an alternative and, to defendant, more favorable version of events. (Id. at 610, 611).Accordingly, the Court affirmed Judge Weinstein's conclusion that "[d]efense counsel's lack of preparation and failure to challenge the credibility of the key prosecution witness could not be based on a sound trial strategy, and it was an unreasonable application of Strickland for the County Court to hold otherwise." (Id. at 611).

In cases before and after Gersten, both federal and state courts have employed an analysis similar to that undertaken by the Second Circuit to evaluate the propriety of a defense counsel's strategy and tactics in sex abuse cases, at least as far as medical experts are concerned, and with similar results: counsel's failure to consult with or call expert medical witnesses invariably resulted in, at the least, a more extensive evaluation of trial counsel's conduct and the purported rationale behind it. For example, in Pavel v. Hollins, 261 F.3d 210, 223 (2d Cir. 2001), the Second Circuit held defense counsel's representation ineffective when he failed to call or consult with medical experts in a sex abuse case, or to provide a satisfactory reason for such a decision. As the Court stated, [*7]

"[W]e believe that [defense counsel] Meltzer's performance was deficientto the extent that he did not call a medical expert to testify as to thesignificance of the physical evidence presented by the prosecution. Thisdecision might well have been beyond reproach if it had been based onappropriate strategic considerations, or if it had been made by Meltzerfollowing a sufficient investigation. But that was not the case.

First, as noted above, Meltzer decided not to put on a medical expert forreasons that had nothing to do with serving Pavel's interests. . .Therefore, the considerations that animated Meltzer's decision not to calla medical expert cannot be described as truly "strategic."

Second, Meltzer's decision not to call a medical expert was deficientbecause it was not based on pre-trial consultation with such an expert."

See also, e.g., People v. Okongwu, 71 AD3d 1393, 1395 [4th Dept. 2010] (Medical evidence in a sex crimes trial corroborating the victim's testimony went unrefuted due to unsuccessful and inexcusably "feeble attempts" by defense counsel to contact medical experts. In addition, defense counsel indicated that he was unfamiliar with literature raising doubts about child sexual abuse syndrome, and thus did not cross examine People's psychological expert concerning that literature. Accordingly, defendant's CPL 440 motion was granted on the grounds of ineffective assistance of counsel.); Eze v. Senkowski, 321 F.3d 110, 128 (2d. Cir. 2003). ("[W]hen a defendant is accused of sexually abusing a child and the evidence is such that the case will turn on accepting one party's word over the others, the need for defense counsel to, at a minimum, consult with an expert about the "vagueness of abuse" is critical . . . The importance of consultation and pre-trial investigation is heightened where, as here, the physical evidence is less than conclusive and open to interpretation."); Lindstadt v. Keane, 239 F.3d 191, 201 (2d Cir. 2001).

Here, in light of Gersten and related cases, a hearing to examine the manner in which Mazzamurro addressed the issue of medical and trial expert witnesses, before and during the trial, is in order. In the instant case, as in other sexual abuse cases, the alleged failure by counsel to consult with or call a medical expert may be indicative of ineffective assistance of counsel particularly where, as here, "the prosecution's case, beyond the purported medical evidence of abuse, rests on the credibility of the alleged victim, as opposed to direct physical evidence such as DNA, or third party eyewitness testimony." (Gersten v. Senkowski, 426 F.3d 588, 607 [2d Cir. 2005]). Material facts, as initially adduced by Defendant in his papers may, if established, entitle him to the relief sought. See People v. Ferreras, 70 NY2d 630, 631 (1987); People v. Nau, 21 AD2d 568 (2d Dept. 2005).

However, contrary to Defendant's contention on this motion, Mazzamurro's affidavit submitted in support of Richard's post-trial CPL 330 motion is, standing alone, insufficient to establish a lack of meaningful representation as far as the expert witness issue is concerned. While it is undisputed that Defendant called no expert witness at trial, Mazzamurro's affidavit is not free of ambiguity. It is unclear from his affidavit whether any experts were consulted on an informal basis; nor does Mazzamurro set forth in detail his rationale for the specific lack of [*8]expert consultation to which he does refer. In addition, it is noteworthy that no affidavit of Mazzamurro was submitted in support of the instant motion. Such a submission may have helped clarify what steps, if any, he did take before and during the trial in relation to experts and whether such steps were part and parcel of a coherent and reasonable trial strategy, or instead should be viewed as evincing ineffective assistance.

Thus, in view of the "centrality of expert testimony" in cases such as this - - where expert testimony may well have a significant, if not determinative impact on whether a jury concludes that the alleged criminal acts occurred or not - - the rationale underlying defense counsel's purported failure to consult with and admitted failure to call outside medical experts at trial must be examined. Accordingly, a hearing is ordered, limited in scope to the issue of trial counsel's conduct with respect to medical experts. See People v. Jenkins, 68 NY2d 896 (1986).

Defendant Richard has a right to be present at such hearing, but may waive such right in writing. Such waiver of the right to be present should be submitted to the Court no later than one week prior to the scheduled court date. At the hearing, Defendant will bear the burden of proving by a preponderance of the evidence every fact essential to support his motion. (CPL � 440.30[6]).

Within ten days of the date of the entry of this Decision, the People are directed to submit to the Court a proposed order for the production of Defendant for the purposes of an appearance before this Court on May 12, 2011, at 2:00 p.m. at which time a date for the hearing will be scheduled.

The Court considered the following papers on this application: 1) Notice of Motion and Affirmation in Support dated July 15, 2010 together with Exhibits A through N and Memorandum of Law, People's Affirmation in Opposition and Memorandum of Law together with Appendix to the People's Memorandum of Law; Affirmation in Reply together with Exhibit A, and Appendix to Defendant's Submissions in Reply, Transcripts of proceedings regarding indictment no. 124-2006 dated 9/7/06, 9/14/06, 12/1/06, 12/6/06, 12/7/06, 12/11/06, 12/12/06, 12/13/06.

The foregoing constitutes the Decision and Order of this Court.

Dated: April 12, 2011

White Plains, New York

[*9]

Hon. John P. Colangelo

Westchester County Court Judge