Decided and Entered:July 23, 2026

113617

Calendar Date: May 29, 2026

Before: Clark, J.P., Aarons, Ceresia, Mcshan And Powers, JJ.

[*1]

Ceresia, J.

Appeal from a judgment of the Supreme Court (Thomas Breslin, J.), rendered April 23, 2013 in Albany County, upon a verdict convicting defendant of the crimes of predatory sexual assault (two counts), kidnapping in the first degree and endangering the welfare of a child (five counts).

In 2012, defendant was charged by an 11-count superseding indictment with two counts of predatory sexual assault, two counts of aggravated sexual abuse in the first degree, sexual abuse in the first degree, kidnapping in the first degree and five counts of endangering the welfare of a child, based upon allegations that defendant restrained the victim inside their home and, over the course of several hours, sexually abused her with several objects, engaged in nonconsensual sexual contact with her and physically assaulted her. During this time, the five young children of defendant and the victim were present. Following a jury trial, defendant was convicted of two counts of predatory sexual assault, kidnapping in the first degree and five counts of endangering the welfare of a child. Supreme Court sentenced defendant to an aggregate prison term of 25 years to life. Defendant appeals.

Defendant contends that defense counsel provided ineffective representation at trial. "It is well established that a claim of ineffective assistance of counsel must fail if the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation" (People v Malloy, 228 AD3d 1068, 1071 [3d Dept 2024] [internal quotation marks and citations omitted], lv denied 42 NY3d 971 [2024]; see People v Colter, 206 AD3d 1371, 1375-1376 [3d Dept 2022], lv denied 38 NY3d 1149 [2022]). "To prevail, the defendant must demonstrate the absence of strategic or other legitimate explanations i.e., those that would be consistent with the decisions of a reasonably competent attorney for the alleged deficiencies of counsel" (People v Wilcox, 231 AD3d 1350, 1351 [3d Dept 2024] [internal quotation marks and citations omitted]; see People v Shuler, 231 AD3d 1285, 1286 [3d Dept 2024], lv denied 42 NY3d 1082 [2025]).

Initially, defendant advances claims of ineffectiveness relating to the admission of several prior bad acts which were not made part of the People's pretrial Molineux application. These arguments are unavailing, as the record reveals a strategic basis in counsel acquiescing to a majority of this evidence as part of a strategy designed to show that the victim was a controlling manipulator who ultimately fabricated her accusations against defendant. For instance, there was proof that defendant had been fired from his job at a hospital because he was found to be in possession of a patient's medication, for which he was also criminally charged. However, it was defendant's position, as outlined in his own testimony as well as through cross-examination of the victim, that it was actually the victim [*2]who stole the medication, and he took the blame for her. There was also testimony that defendant fraudulently obtained a child tax credit, but defense counsel sought to portray, through questioning of the victim, that this was done at her insistence. By way of another example, counsel cross-examined the victim about an occasion when she reported to Child Protective Services (hereinafter CPS) that defendant had knocked her teeth out. In so doing, counsel attempted to show that the victim had a dental condition which led to the teeth falling out on their own, such that she had lied to CPS when she said otherwise. Counsel also brought out the fact that CPS cited the victim for having an unsanitary household on two occasions. Defendant additionally claims that counsel improperly failed to object to testimony by the victim concerning a domestic incident wherein defendant allegedly threatened to burn down the house and kill her and their children. However, as counsel pointed out on summation, the police did not arrest defendant on that occasion for any purported domestic allegations but, instead, only arrested him for possessing the aforementioned medication. Thus, there is record support for a tactical decision on counsel's part to undermine the victim's credibility by highlighting that the police did not take any action in response to her report of a domestic incident.

Although this defense strategy employed by counsel ultimately proved unsuccessful, it was a reasonable one under the circumstances and in light of the evidence presented, and counsel's "efforts should not be second-guessed with the clarity of hindsight to determine how the defense might have been more effective" (People v George, 242 AD3d 1447, 1453 [3d Dept 2025] [internal quotation marks and citations omitted], lv denied 45 NY3d 945 [2026]; see People v Smith, 237 AD3d 1367, 1376 [3d Dept 2025], lv denied 43 NY3d 1059 [2025]). Defendant's remaining assertions of ineffectiveness relative to the admission of prior bad act evidence have been considered and are likewise without merit.

Next, contrary to defendant's claim, counsel's opening statement and closing argument set forth a cohesive line of reasoning that defendant was innocent of the charged crimes and that, while he and the victim physically fought on the date in question, he did not restrain her and their sexual activity was consensual (see People v Truitt, 213 AD3d 1145, 1151 [3d Dept 2023], lv denied 39 NY3d 1144 [2023]). Regarding the fact that counsel did not request that the jury be instructed to consider any lesser included offenses of kidnapping in the first degree, "defendant has not demonstrated that the failure to request such . . . charge[s] was other than an acceptable all-or-nothing defense strategy" to secure an acquittal, consistent with the theory that defendant was entirely innocent (People v Rosario, 157 AD3d 988, 994 [3d Dept 2018] [internal quotation marks, brackets and citation omitted], lv denied 31 NY3d [*3]1121 [2018]; see People v Terry, 240 AD3d 1128, 1133 [3d Dept 2025], lv denied 44 NY3d 995 [2025]).

Turning to defendant's arguments that counsel was ineffective for failing to object to two remarks made by the prosecutor during summation, we are unpersuaded. First, the prosecutor stated that there appeared to be a pubic hair on the baby bottle that was allegedly used to sexually assault the victim. Although there was no trial testimony concerning this hair, upon review of the photograph and having considered the prosecutor's reasoning in support of their argument to the jury that it appeared to be a pubic hair, we find that this was not an unfair comment (see People v Mowry, 246 AD3d 1288, 1292 [3d Dept 2026], lv denied 45 NY3d 973 [2026]). In any event, even assuming that the comment should not have been made and defense counsel should have raised an objection, this singular error was not so "egregious and prejudicial as to deprive defendant of his constitutional right to effective legal representation" (People v Williams, 232 AD3d 1124, 1126 [3d Dept 2024] [internal quotation marks, ellipsis and citations omitted], lv denied 43 NY3d 1059 [2025]). Second, the prosecutor stated that the victim's cell phone records and the timing of certain calls reflected therein corroborated the victim's account of the events in question. Again, we conclude that the prosecutor's comments were not inconsistent with the trial evidence, such that counsel cannot be faulted for failing to raise an objection that would have had little to no chance of success (see People v Reinfurt, 241 AD3d 1015, 1025 [3d Dept 2025], lv denied 44 NY3d 1067 [2026]).

We turn finally to defendant's arguments concerning Supreme Court's Molineux charge to the jury. To the extent that defendant claims that the court committed error in referencing only his prior criminal conviction while failing to include the other bad acts that were introduced into evidence, this argument is unpreserved. As for defense counsel declining the opportunity to submit his own, more expansive Molineux charge, although counsel initially indicated that he did not have sufficient time to prepare such a proposed instruction, he then reconsidered his position and indicated that he felt the charge would be unnecessary because the supposed bad act evidence was favorable to defendant. Thus, the decision to forgo a broader instruction was borne out of a strategic determination consistent with the theory of the defense.

Viewing defense counsel's representation in its totality, the record demonstrates that counsel engaged in pretrial motion practice, developed a coherent defense, gave an appropriate opening statement and closing argument, made numerous successful objections during trial and vigorously cross-examined the People's witnesses and, as a result, defendant was not deprived of the effective assistance of counsel (see People v Gibson, 240 AD3d 1054, 1060 [3d Dept 2025]; People v Imes, 226 AD3d 1080, 1084 [3d Dept [*4]2024], lv denied 41 NY3d 1019 [2024]). In so holding, we have reviewed defendant's remaining contentions concerning ineffectiveness and find them to be without merit.

Clark, J.P., Aarons, McShan and Powers, JJ., concur.

ORDERED that the judgment is affirmed.