state court's decision to this to the effect of a failure to call or consult with a child sexual abuse accommodation expert was not in effect of counsel under strickland and our goal today is decide whether that decision is an unreasonable application of the strickland doctrine dealing with this type of testimony the parties generally agree the standard of review  trial counsel is not required to consult consults or call an expert on c s a yes but that counsel has the option of trying to educating himself or herself about the relative relevant scientific issues isn't that this is the standard of garstin think the law as it stands now is there is no requirement to call an expert but you have an obligation to be educated and in cases where how is it that in this case the trial counsel did not sufficiently educate himself about c s s well because float out there that he would there be no opposition when the when the he continued to make the case that he did up to the new york court of appeals and the new york court of appeals there were in the sense there were three not provable without him and when you when you take a look at his affidavit muzi what he has to say and he's every bit as competent as the people's expert you can see what differences are available to the petition expert i doubt that will happen again because in this area the prosecutors are very specialized very experienced and very good and the next expert going to know how to turn that on its head against a lawyer thinks he's going to get away with cross beyond the record so then it goes to the what we would call the state havey as the four four four point one zero hearing and then we have to afford some at the deference to the decision of that judge wright so  we required to give deference to that so i'm curious though there was no hearing conducted for the state for the state heaviest and there's no testimony or affidavit from the lawyer daniels right why was it that you didn't this seem to have invited that is just got sense as with the split on the court of appeals like it it seemed as if that would be a major issue is what what was daniel's thinking when he didn't because the mac affidavit was before the state havey as judge you know what was what was daniel's thinking when he didn't do more to cross examine koski at the trial what can you tell me what happened why why wasn't that about i don't know  it he told me the night before it's no point having no expert why wouldn't the petitioner have called daniel's we got an affidavit and had a hearing in the four forty four state mean you know i mean well i just curious to me with all this build up in a split in a new york court of appeals and there's this woman question are two decisions about whether this is trustworthy evidence you think then the next stage of the stay here of us would be what we got to was on the stand and say why was it that you didn't prepare more for the cross at least by consulting your own expert we're calling your own expert we don't need be speculating as you are your honor but i think that it could have been a very tactical decision to not let the people get another bite at dr max use affidavit which was sat there on conveyor controverted up to this point and mr daniels i guess the most experienced trial lawyer supposedly presumably in buffalo i don't imagine he'd be easy to trip up on cross it probably was a very tactical decision to not do that on the part of the petition good morning or honors may please the court nicholas texaco of the hearing county d a s office for the pallies i would first and usually i wouldn't discuss the standard but first i do want to clarify because counsel takes issue with it the issue is not whether this court would find ineffectiveness if the court was reviewing it in the first instance whether declining to find ineffectiveness on the state courts part was objective leon reasonable at first blush looks great for the defense looks very convincing and it looks like it would provide great testimony but when you peel off the layers of that affidavit it actually makes testimony would either be of no value to the defense or would actually be harmful to the defense let me tell you why mack says that when three assumptions exist the theory has no relevance and all three of these assumptions have to exist for the theory to have no relevance one that the alleged abuser is not and was never in a position of authority or and control over the alleged victim now in this case we know that assumption does not exist because the the defendant or the petitioner was the sole adult supervisor of this young child sleep overs in public at sporting events all sorts of other activities he was an older cousin a family member and he was the only adult responsible for this child at times number two the second assumption that has to be present for mack to say that the theory has no relevance that the alleged victim knows in advance that his family will believe him there is no evidence in this case and there was no evidence that this alleged victim knew in advance that the family would believe him in fact the expert testimony on sexual abuse accommodation syndrome is that victims under the concept of the first concept of the theory is that adults will cover it up so it victims tend to think that if they go and tell their parents or some other adult that that adult is going to cover up for the other adult and that's part of the theory and the thing that's the no he did i'm going off of his affidavit why was there no hearing we we oppose running a hearing because the defendant wasn't entitled to it he didn't he didn't establish facts that if true would entitle him to vacate or of the conviction so the hearing is only appropriate where there is a factual dispute and where he actually alleges facts that if true would more of a container of the conviction and if you hear just on the face of the record it's clear that counsel educated conviction or in the alternative a hearing and we oppose that and the court denied that that is it isn't it into some extent least irrelevant max testimony in the a s is scientifically strong or sound or a whether it was even appropriately used in this case is whether the comp the representation of the lawyer walked he would have found this this great expert who would have blown the people's case wide open it's simply not the case your honor i was talking about these assumptions that must be present in order for mack to say the theory has no relevance the third is that and this one is the one that's the most clear that it's not present that there is no pressure including emotional pressure to be in the abuser's presence we're talking about a younger cousin and an older cousin where the older cousin would take this person to sabre's  games buffalo sabers forgot him out of town for a second would take would play neat hockey with them have him for sleep overs wrestle with them and to say that there is no emotional pressure for the alleged victim to be he says and the end of that sentence your honor is for discovery of the underlying facts and ultimately the truth in this particular situation based on the information available to me and the information given to him was as i just went through was flawed and faulty information so of course the theory wouldn't apply based on the information that was given to him that's number one number two the expert testimony the people's expert here was a little different vendors and because i believe the science has evolved since then and engrossed in the doctor's affidavit said that the viewing the five stages as as almost like a five step process every child goes through is not scientifically reliable and also that it's not scientifically reliable for dying diagnostic purposes to see if the victims telling the truth the  first issue that testimony did was not present in our case because the experts aware that that's not it's not scientifically valid for that reason the second point the expert the people's expert conceded on direct examination before counsel ever stood up that this is not to be taken as a diagnostic tool or an indication that the abuse in fact did happen what it was to be taken as is a generalized explanation one defense counsel here you know maybe he was not super her but did do some things to conduct an investigation to understand  about whether the attorneys performance was deficient there was not disagreement as to whether it was deficient but he created disagreement as to whether in the state's highest court as to whether th testimony should have been admitted at all and that was based on the arguments yes there were those two things also in cross examination he always said it from the expert that it's quite possible that the reason this victim delayed so long in disclosing was that he was fabricating it all so he was able to get the people's own expert to say that he would agree that cross examination was not the best cross examination last ten ten pages on the transcript and  practitioner who can talk to about his demeanor there's the victim's mother who talks about the young young boy's reaction when the petitioner tickled him was to recoil into a fetal position and and to start acting strange so there was other stuff that buttress his testimony but i would say that yes this this did buttress the child's testimony i don't think i would concede that the cross examination wasn't good the problem with the cross examination is that this is a valid science so what he was able to get out was that the person knew was not a doctor knew did not have familiarity with the case and that he has no idea why this delay in fact happened and that the reason could be because the child was fabricated i would just like to say what he also did and he crafted it and received detail jury instruction where the jury was instructed that they were permitted to consider the delay in determining whether the child was telling the truth and then he wove that jury's that jury instruction into a summation and made what i think was an effective argument that the jury should consider the child's delay in determining whether or not he was telling the truth thank you is on probation he would at this point be on post release supervision and last five years he was just released from prison have much support for example of fetal position supposed to mean something when i was tickled by my brothers that's the position i got in because that's the way you don't get tickled anymore i just you know we're going to fantasyland here in our everything means something more than it really scientifically reliable tool in these circumstances to get at the truth and that's what we needed to do the new york court of appeals was very careful to point out you see us a us is missable here in new york why maybe if we had that record we would have held otherwise so and i think i think that's the primary point i'd want to make other than to say that i really think the prejudiced element of the gersten test here that the facts in this