SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1381 

KA 10-01039 

PRESENT: SCUDDER, P.J., CENTRA, CARNI, LINDLEY, AND MARTOCHE, JJ. 

 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

DAVID BURGOS, DEFENDANT-APPELLANT. 

 

BRUCE R. BRYAN, SYRACUSE, FOR DEFENDANT-APPELLANT. 

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (VICTORIA M. WHITE

OF COUNSEL), FOR RESPONDENT. 

 

Appeal from a judgment of the Supreme Court, Onondaga County

(John J. Brunetti, A.J.), rendered December 22, 2009. The judgment

convicted defendant, upon a jury verdict, of course of sexual conduct

against a child in the first degree and endangering the welfare of a

child. 

It is hereby ORDERED that the judgment so appealed from is

unanimously affirmed. 

Memorandum: Defendant appeals from a judgment convicting him

following a jury trial of course of sexual conduct against a child in

the first degree (Penal Law § 130.75 [1] [b]) and endangering the

welfare of a child (§ 260.10 [1]). By its verdict, the jury found

that defendant sexually abused his former girlfriend’s daughter from

the time the child was 8 years old until she was almost 13 years old. 

We reject defendant’s contention that he was denied effective

assistance of counsel based upon, inter alia, defense counsel’s

failure to call a medical expert to testify regarding the absence of

physical evidence of sexual abuse. It is well established that, “[t]o

prevail on a claim of ineffective assistance of counsel, it is

incumbent on defendant to demonstrate the absence of strategic or

other legitimate explanations for counsel’s failure to” call such a

witness (People v Rivera, 71 NY2d 705, 709), and he failed to do so

here. Indeed, given the delay between the last act of abuse and the

victim’s disclosure, i.e., a period in excess of one year, and given

the fact that there was never any vaginal penetration, it was not

likely that there would be physical evidence of abuse. We note in any

event that defendant relies on Gersten v Senkowski (426 F3d 588, cert

denied 547 US 1191) in support of his contention, but we conclude that

his reliance thereon is misplaced. In that case, the petition for a

writ of habeas corpus was granted based, in part, upon the failure of

petitioner’s trial attorney to obtain a medical expert to challenge

the testimony of the People’s expert that a physical examination of
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KA 10-01039 

the victim showed signs of sexual abuse. Here, unlike in Gersten, the

People offered no such expert testimony regarding signs of abuse. We

have examined the remaining allegations of ineffective assistance of

counsel raised by defendant and conclude that they lack merit (see

generally People v Baldi, 54 NY2d 137, 147). 

We also reject defendant’s contention that the People failed in

the indictment and superseding indictment to specify the time, date

and place of the alleged offenses in an adequate manner. “ ‘The text

and legislative history of [the crime of course of sexual conduct

against a child] make clear that it is a continuing crime to which the

usual requirements of specificity with respect to time do not

pertain’ ” (People v McLoud, 291 AD2d 867, 868, lv denied 98 NY2d

678). That principle applies equally to the crime of endangering the

welfare of a child (see People v Keindl, 68 NY2d 410, 421-422, rearg

denied 69 NY2d 823). We conclude that the period of time set forth in

the superseding indictment “was sufficient to give defendant adequate

notice of the charges to enable him to prepare a defense, to ensure

that the crimes for which he was tried were in fact the crimes with

which he was charged, and ‘to protect [his] right not to be twice

placed in jeopardy for the same conduct’ ” (McLoud, 291 AD2d at 868;

see Keindl, 68 NY2d at 416-417). 

Viewing the evidence in light of the elements of the crimes as

charged to the jury (see People v Danielson, 9 NY3d 342, 349), we

reject defendant’s further contention that the verdict is against the

weight of the evidence (see generally People v Bleakley, 69 NY2d 490,

495). Although as noted the victim failed to disclose the sexual

abuse for over a year, and even assuming that she had a motive to

fabricate the charges, her credibility was an issue for the jurors to

determine, and we perceive no basis for disturbing their credibility

determination (see People v Massey, 61 AD3d 1433, lv denied 13 NY3d

746). We also reject defendant’s contention that the People misled

him concerning a Valentine’s Day card sent by him to the victim

because their bill of particulars indicated that they did not intend

to offer at trial any statements made by defendant. The People’s duty

to disclose statements by a defendant extends only to statements made

“to a public servant engaged in law enforcement activity or to a

person then acting under [the public servant’s] direction or in

cooperation with him [or her]” (CPL 240.20 [1] [a]). Statements made

by a defendant to persons not acting “in any law enforcement capacity”

are not discoverable (People v Swart, 273 AD2d 503, 504, lv denied 95

NY2d 908). 

Contrary to defendant’s contention, Supreme Court did not err in

admitting evidence regarding the victim’s disclosure of the abuse to

third parties. The record establishes both that the evidence was not

admitted for its truth, and that the court gave an appropriate

limiting instruction to that effect (see People v Tosca, 98 NY2d 660;

People v Shivers, 301 AD2d 473, 473-474, lv denied 99 NY2d 658). We

further conclude that the court properly admitted evidence that the

victim was in counseling at the time she disclosed the abuse, inasmuch

as it provided background information as to how the abuse was

ultimately disclosed (see generally People v Bassett, 55 AD3d 1434,
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KA 10-01039 

1436, lv denied 11 NY3d 922). 

The sentence is not unduly harsh or severe. We have reviewed

defendant’s remaining contentions and conclude that they are without

merit. 

Entered: December 30, 2011 Frances E. Cafarell

Clerk of the Court