State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: July 16, 2015 106941 

106943

________________________________

THE PEOPLE OF THE STATE OF

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

VINCENT CASSALA,

Appellant.

________________________________

Calendar Date: May 26, 2015

Before: Lahtinen, J.P., McCarthy, Rose and Clark, JJ.

__________

DerOhannesian & DerOhannesian, Albany (Paul DerOhannesian

II of counsel), for appellant.

P. David Soares, District Attorney, Albany (Vincent Stark

of counsel), for respondent.

__________

Rose, J.

Appeals (1) from a judgment of the Supreme Court (Breslin,

J.), rendered May 16, 2012 in Albany County, upon a verdict

convicting defendant of the crimes of attempted rape in the first

degree, attempted rape in the third degree, criminal sexual act

in the first degree (two counts), criminal sexual act in the

third degree (two counts) and endangering the welfare of a child

(two counts), and (2) by permission, from an order of said court,

entered July 29, 2014, which denied defendant's motion pursuant

to CPL 440.10 to vacate the judgment of conviction, after a

hearing.

Defendant was charged with engaging in a series of sexual
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assaults against the then-15-year-old victim, including three

separate instances in which he was alleged to have forcibly

compelled her to submit to anal sexual intercourse. After a jury

trial, defendant was acquitted of two counts arising out of one

of the alleged instances of anal intercourse and convicted of

attempted rape in the first degree, attempted rape in the third

degree, two counts of criminal sexual act in the first degree,

two counts of criminal sexual act in the third degree and two

counts of endangering the welfare of a child. Supreme Court

sentenced him to an aggregate prison term of 15 years followed by

10 years of postrelease supervision. Defendant then retained new

counsel and moved to vacate the judgment on the ground that he

had been deprived of the effective assistance of counsel (see CPL

440.10 [1] [h]). After a hearing, at which his former counsel

testified, Supreme Court denied defendant's motion, prompting

this appeal from both the judgment of conviction and, by

permission, from the denial of his postconviction motion. We now

reverse.

The effectiveness of the assistance of counsel is analyzed

in terms of whether "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 Baldi, 54 NY2d 137, 147 [1981]; accord

People v Benevento, 91 NY2d 708, 712 [1998]). To prove that he

or she did not receive meaningful representation, a defendant

must "demonstrate the absence of strategic or other legitimate

explanations for counsel's allegedly deficient conduct" (People v

Clermont, 22 NY3d 931, 937 [2013] [internal quotation marks and

citation omitted]; see People v Wheeler, 124 AD3d 1136, 1138-1139

[2015], lv denied 25 NY3d 993 [2015]). Because the test for

attorney effectiveness is "reasonable competence, not perfect

representation" (People v Oathout, 21 NY3d 127, 128 [2013]

[internal quotation marks and citation omitted]; accord People v

Chappelle, 126 AD3d 1127, 1129 [2015]), "a reviewing court must

avoid confusing true ineffectiveness with mere losing tactics and

according undue significance to retrospective analysis" (People v

Benevento, 91 NY2d at 712 [internal quotation marks and citation

omitted]; see People v Arnold, 85 AD3d 1330, 1333 [2011]). Here,

the totality of the record reveals that, at crucial stages of the
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representation, counsel inexplicably failed to investigate the

victim's bleeding disorder, consult with and be prepared to call

a medical expert on the subject, raise the issue during crossexamination of the People's medical expert, and to object to the

testimony of defendant's former spouse regarding defendant's

sexual preferences during their marriage. The cumulative effect

of these prejudicial failures deprived defendant of the effective

assistance of counsel and his right to a fair trial.

"[I]t is elementary that the right to effective

representation includes the right to assistance by an attorney

who has taken the time to review and prepare both the law and the

facts relevant to the defense" (People v Droz, 39 NY2d 457, 462

[1976]; accord People v Oliveras, 21 NY3d 339, 346-347 [2013]). 

Counsel failed defendant in this regard, as he conducted no

investigation into the significance of the fact that the victim

has Von Willebrand Disease (hereinafter VWD), a bleeding

disorder.1 At the CPL 440.10 hearing, counsel acknowledged that

he had been aware that the report of the sexual assault nurse

examiner (hereinafter SANE) noted that the victim had been

diagnosed with a bleeding disorder, but that he was unfamiliar

with the additional notation of VWD. Despite this, counsel

admitted that he did no research on VWD, never consulted a

medical expert on the subject and had no tactical reason for not

doing so. Rather, counsel testified that he believed the

victim's diagnosis to be an insignificant detail because

defendant never mentioned it to him and the SANE report indicated

that no signs of physical injury were observed. 

Counsel's admitted failure to investigate the victim's

bleeding disorder meant that he was unprepared to effectively

cross-examine the SANE, with disastrous consequences for

1 According to the American College of Obstetricans and

Gynecologists, VWD is "the most common inherited bleeding

disorder among American women [and] is a common cause of . . .

bleeding problems in women and adolescent girls." Symptoms of

VWD include, among other things, "bleeding from minor cuts or

abrasions."
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defendant's case. Aside from attempting to impeach the victim's

credibility on cross-examination, which he did with some success,

counsel relied heavily upon the absence of any objective findings

of physical injury in the SANE report to support the theory that

the victim had fabricated the allegations against defendant. 

However, it is clear from counsel's testimony at the CPL 440.10

hearing that he failed to recognize the detrimental effect of the

SANE's opinion testimony, namely, that it is "common" to examine

a victim of sexual abuse and observe no signs of physical injury. 

As a result, this opinion went completely unchallenged during the

trial, and it effectively neutralized the otherwise persuasive

force of the report's findings of no physical injury.

Had counsel sought to inform himself about the victim's VWD

diagnosis, he likely would have become aware of medical experts

such as Howard Snyder, a board-certified doctor of emergency

medicine who submitted an affidavit in support of defendant's

postconviction motion. Snyder averred that "[t]he presence of

VWD [in the victim] would have made the presence of bruising or

bleeding during forceful, non-consensual anal intercourse more

likely than in [a] patient without VWD."2 Undoubtedly, expert

testimony similar to Snyder's would have done much to increase

the significance of the SANE report's lack of physical findings

and would have provided a powerful basis for cross-examination to

counter the damaging effects of the SANE's opinion testimony.

Counsel's failings were magnified by the fact that the

People's only direct evidence of defendant's guilt was the

victim's testimony, making counsel's efforts to undermine her

credibility of paramount importance. Indeed, there were no other

witnesses to the alleged sexual assaults and no DNA evidence was

recovered. In similar situations, the Second Circuit, applying

New York law, has repeatedly held that "when 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

2 We note that the People submitted no responsive

documentary evidence or information tending to refute such

allegations (see CPL 440.30 [1] [a]).
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other's, the need for defense counsel to, at a minimum, consult

with an expert to become educated about the vagaries of abuse

indicia is critical. The importance of consultation and pretrial investigation is heightened where, as here, the physical

evidence is less than conclusive and open to interpretation" (Eze

v Senkowski, 321 F3d 110, 129 [2d Cir 2003] [internal quotation

marks and citations omitted]; accord Gersten v Senkowski, 426 F3d

588, 608-609 [2d Cir 2005], cert denied sub nom. Artus v Gersten,

547 US 1191 [2006]; see Pavel v Hollins, 261 F3d 210, 223-225 [2d

Cir 2001]; Lindstadt v Keane, 239 F3d 191, 201-202 [2d Cir

2001]).3 Thus, the record establishes that, without any

justification, counsel prejudiced defendant by "s[itting] on his

hands, confident that his client would be acquitted" rather than

"consult[ing with] and be[ing] prepared to call an expert" (Pavel

v Hollins, 261 F3d at 224), whose testimony then would have been

"available [to] assist[] the jury in its determination" (People v

Castricone, 224 AD2d 1019, 1019 [1996]; accord People v

Washington, 122 AD3d 1406, 1407 [2014]; compare People v Auleta,

82 AD3d 1417, 1419-1420 [2011], lv denied 17 NY3d 813 [2011]).

Counsel's conduct further fell below our standard of

meaningful representation because he failed to object to, and

request a limiting instruction to guide the jury in assessing,

the testimony of defendant's former spouse regarding defendant's

sexual preferences. Counsel sat mute while the witness testified

that, upon reading the victim's statement to police, it struck

her that it contained details "only someone who had been intimate

with [defendant] would know," including what she then proceeded

to describe as defendant's preference for anal intercourse during

3 In these cases, ineffective assistance of counsel was

found utilizing the federal standard (see Strickland v

Washington, 466 US 668, 687 [1984]). However, inasmuch as "our

state standard . . . offers greater protection than the federal

test" (People v Caban, 5 NY3d 143, 156 [2005]; see People v

Clermont, 22 NY3d at 937), representation that falls below the

federal standard will generally also be found to fall below our

state standard. 
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their consensual sexual relationship.4 We do not think that

counsel's failure to object to this testimony can be excused on

the ground that such an objection had "little or no chance of

success" (People v Caban, 5 NY3d at 152 [internal quotation marks

and citation omitted]). "Not all relevant evidence is admissible

as of right. . . . Even where technically relevant evidence is

admissible, it may still be excluded by the trial court in the

exercise of its discretion if its probative value is

substantially outweighed by the danger that it will unfairly

prejudice the other side" (People v Scarola, 71 NY2d 769, 777

[1988] [citations omitted]). 

In our view, a legitimate question exists as to whether the

prejudicial effect of the former spouse's testimony regarding

defendant's sexual preferences substantially outweighed its

probative value, especially considering that she testified that

she and defendant had not been sexually active for several years

prior to the alleged assaults on the victim. Supreme Court

should have had the opportunity to consider this question and

make an appropriate ruling in the exercise of its discretion. 

The court would have done so, but for counsel's inexplicable

failure to object. In the event that the court had determined

this testimony to be admissible, counsel could then have

requested a limiting instruction, as the lack thereof would

"permit[] the jurors to perhaps consider [the former spouse's

statements] as proof of defendant's propensity" to engage in the

sexual acts charged here (People v Langlois, 265 AD2d 683, 685

[1999]; see People v Greene, 306 AD2d 639, 642-643 [2003]; lv

denied 100 NY2d 594 [2003]; People v Forbes, 203 AD2d 609, 610-

611 [1994]). Indeed, the lack of any limiting instruction

clearly impacted the jury's deliberations, as evidenced by the

4 Contrary to defendant's argument, this was not

inadmissible Molineux evidence, inasmuch as anal intercourse

between consenting adults has been held to be neither criminal

conduct nor inimical to public morality (see Lawrence v Texas,

539 US 558, 578-579 [2003]; People v Onofre, 51 NY2d 476, 492

[1980], cert denied 451 US 987 [1981]; see also People v Brewer,

___ AD3d ___, ___, 2015 NY Slip Op 05329, *1, *2 [2015]). 
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jury's request to have the testimony read back regarding

defendant's "past sex life."

Finally, we note with disapproval certain remarks made by

the prosecutor during summation, to which counsel did not object. 

The prosecutor improperly attempted to appeal to the jury's

sympathy by asking the jurors to consider how they would have

felt if they "were in [the victim's] shoes" (see Wilson v City of

New York, 65 AD3d 906, 909 [2009]; Dailey v Keith, 306 AD2d 815,

816 [2003], affd 1 NY3d 586 [2004]). The prosecutor also

exhorted the jurors to advocate for the victim during

deliberations by using the phrase "you fight for her" (see People

v Head, 90 AD3d 1157, 1158 [2011]; People v Nelson, 68 AD3d 1252,

1255 [2009]). While counsel's failure to object to these remarks

does not, in and of itself, amount to ineffective assistance of

counsel, it further illustrates counsel's representation, the

cumulative effect of which deprived defendant of meaningful

representation, especially "where, as here, the determination of

guilt . . . hinged on sharp issues of credibility" (People v

Clarke, 66 AD3d 694, 698 [2009]; see People v Arnold, 85 AD3d at

1334).

In light of our conclusion that a new trial is required, we

need not reach defendant's remaining arguments.

Lahtinen, J.P., McCarthy and Clark, JJ., concur.
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ORDERED that the judgment and order are reversed, on the

law, and matter remitted to the Supreme Court for a new trial.

ENTER:

Robert D. Mayberger

Clerk of the Court