The opinion of the court was delivered by: William C. Conner, Senior District Judge.
Robert C. White ("petitioner") brings this petition for a writ
of habeas corpus under 28 U.S.C. § 2254, seeking to set aside a
September 30, 1993 judgment of the County Court of Sullivan
County (Vogt, J.), convicting him, after a jury trial, of sodomy
in the first degree (sixteen counts), sodomy in the second degree
(sixteen counts), and sexual abuse in the first degree (six
counts). He was sentenced to ten to thirty years in prison, and
is currently incarcerated in the Woodbourne Correctional Facility
in Woodbourne, New York. Petitioner contends that his conviction
should be overturned because: 1) he was denied his statutory
right to a speedy trial pursuant to N.Y.CRIM.PROC.LAW ("CPL") §
30.30; 2) the People failed to turn over Brady material
regarding exculpatory grand jury testimony of one of the victims
until the eve of trial; 3) expert testimony regarding child
sexual abuse syndrome should not have been admitted at trial; 4)
the trial court erred in failing to grant his motion to set aside
the jury's verdict based upon the existence of "new evidence;"
and (5) he was denied effective assistance of counsel due to his
attorney's failure to move to dismiss the indictment on speedy
trial grounds and because of his lawyer's failure to uncover
and/or present the "new" evidence at trial. For the following
reasons, his § 2254 habeas petition is dismissed.
Petitioner seeks to set aside his conviction based on findings
that as a foster parent, he abused numerous children placed in
his care by the Sullivan County Department of Social Services.
Subsequent to sentencing, petitioner filed an appeal of his
conviction to the Appellate Division, Third Department, where he
raised each of the claims now raised in this habeas petition.
People v. White, 229 A.D.2d 610, 645 N.Y.S.2d 562 (N.Y.App. Div. 199
6). The Appellate Division denied petitioner's appeal related
to his Brady claim, his claim on the child sexual abuse
syndrome testimony, and his claim to set aside the verdict based
upon "new evidence." Id. As to petitioner's speedy trial claim,
Appellate Division determined that the matter should be remitted
to the County Court for a hearing for further development. Id.
at 611, 645 N.Y.S.2d 562. A hearing was thus held on September
20, September 27, and November 8 of 1996 on the speedy trial
issue and a decision was rendered on December 31, 1996. The court
found that the speedy trial claim was without merit. See
People's Affidavit Ex. C. The matter was then returned to the
Appellate Division for reconsideration based upon these findings
below, wherein the court also found that the speedy trial claim,
and the ineffective assistance claim based upon the speedy trial
issue, was without merit. People v. White, 238 A.D.2d 619,
655 N.Y.S.2d 700 (N.Y.App. Div. 1997). Petitioner's application for
leave to appeal to the New York State Court of Appeals was denied
on September 16, 1997. People v. White, 90 N.Y.2d 944,
664 N.Y.S.2d 762, 687 N.E.2d 659 (1997) (Table). The instant petition
was timely filed thereafter.
Petitioner was indicted and arraigned on June 5, 1991. The
People filed a Notice of Readiness for Trial on June 6, 1991.
Following this date, significant delay occurred before petitioner
was tried, and trial did not commence until August 16, 1993.*fn1
This delay forms the basis of petitioner's speedy trial claim
under CPL 30.30, which requires the People to be ready for trial
within six months of the commencement of a criminal action in
which a felony is charged. Petitioner claims that the delay was
attributable to the People, specifically that after a visiting
judge, on January 17, 1992, granted petitioner's application to
inspect the grand jury minutes and stated that "the People will
provide minutes to the Court for review," the People violated CPL
30.30 by not providing these minutes to the court. See People's
Affidavit Ex. C (quoting from County Court decision). Thus,
petitioner claims that although the People announced their
readiness for trial within the six-month period required CPL
30.30(1)(a), their postreadiness delay in providing the grand
jury minutes violated his right to a speedy trial, and the People
are therefore responsible for the delay from January 17, 1992 to
August 16, 1993.*fn2
We first note that the County Court, after conducting a
three-day hearing on this issue, determined that the speedy trial
claim had no merit, and the Appellate Division affirmed this
decision. People v. White, 238 A.D.2d 619, 655 N.Y.S.2d 700.
Because this petition was filed after the April 24, 1996
effective date of the Antiterrorism and Effective Death Penalty
Act ("AEDPA"), the AEDPA applies. Pub.L. No. 104-132, 110 Stat.
1214; see Lindh v. Murphy, 521 U.S. 320, 326, 117 S.Ct. 2059,
138 L.Ed.2d 481 (1997); Robison v. Johnson, 151 F.3d 256, 258
n. 2 (5th Cir. 1998), cert. denied, ___ U.S. ___, 119 S.Ct.
1578, 143 L.Ed.2d 673 (1999). 28 U.S.C. § 2254(e)(1) states that
a determination of a factual issue made by a state court shall be
presumed to be correct, and the petitioner bears the burden of
rebutting the presumption of correctness by clear and convincing
However, even if we were not bound by this presumption, our
result would be the same; it is clear that the people were not
responsible for the delay. In a three-day hearing conducted by
the County Court, it was established by the testimony of a
secretary, an assistant district attorney, and a judge connected
this case that it was standard procedure for the District
Attorney to make the grand jury minutes available to a judge upon
request for in camera review. See, e.g., Hearing Testimony of
Judge Anthony T. Kane at 159-60. It is uncontested that the
District Attorney's Office did submit the minutes promptly when
requested. However, because of the death of the only sitting
judge in the jurisdiction, Sullivan County was subjected to a
confusing rotation of visiting judges, assigned to the court in
four-week stints. At least five different judges either
adjudicated or were scheduled to adjudicate various aspects of
petitioner's case and, in the confusion, all failed to request
the grand jury minutes. This failure is no way attributable to
the People. CPL 30.30 addresses prosecutorial readiness, not
readiness by the court. People v. McKenna, 76 N.Y.2d 59,
555 N.E.2d 911, 556 N.Y.S.2d 514 (1990). While a "`[d]elay in
providing Grand Jury minutes may be properly charged to the
People if it can be shown that their action or inaction actually
caused the delay,'" People v. Fitzgerald, 683 N.Y.S.2d 629, 630
(N.Y.App. Div. 1999) (quoting People v. Dearstyne, 215 A.D.2d 864,
866, 626 N.Y.S.2d 879 (N.Y.App. Div. 1995)), we hold that
since the grand jury minutes were promptly transcribed and made
available in conformity with custom and practice in Sullivan
County, CPL 30.30 was not violated. This delay was caused by the
County Court and not the People, and thus petitioner's right to a
speedy trial was not violated. See People ex rel. Franklin v.
Warden, 31 N.Y.2d 498, 294 N.E.2d 199, 341 N.Y.S.2d 604 (1973)
(delay due to court congestion); Fitzgerald, 683 N.Y.S.2d 629
(no violation of CPL 30.30 since delay in providing grand jury
minutes due to the incapacity of the court stenographer).
At the hearing, petitioner also raised the possibility that
because the District Attorney was aware or should have been aware
that one of the judges assigned to the case would recuse himself
from hearing it, the D.A. should have been more proactive in
providing a judge with the grand jury minutes. We find that even
if the District Attorney was aware that this judge did plan to
recuse himself, this did not place upon the D.A. a special onus
to break from the standard procedure for the delivery of grand
jury minutes and send them sua sponte. While the pre-trial
handling of petitioner's case may have been most inefficient due
to the unexpected death of the only presiding judge in the County
Court, this inefficiency is not attributable to the People, and
thus petitioner's speedy trial claim must fail.
Petitioner claims that the People's failure to turn over
relevant exculpatory material violated his rights under Brady v.
Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
More specifically, he claims that his constitutional right to a
fair trial was violated by the prosecution's failure to turn
over, until the evening before the first day of trial, grand jury
testimony of one of his alleged victims specifically denying ever
being assaulted by the petitioner. For the reasons stated below,
we reject petitioner's argument.
Brady requires the prosecution to disclose to an accused
exculpatory information that is both favorable and material to
guilt or punishment. 373 U.S. at 87, 83 S.Ct. 1194, 10 L.Ed.2d
215. Evidence is material if there is a reasonable probability
that, had the evidence been disclosed, the outcome of the
proceeding would have been different. United States v. Bagley,
473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). A
reasonable probability is a "probability sufficient to undermine
confidence in the outcome." Id. Here, however, the analysis
must be somewhat re-phrased, since petitioner does not claim that
the People failed to turn over Brady material, but only that
the People's delay in providing this material violated his rights
under Brady. In such cases, "When the government delays
disclosing exculpatory evidence, the defendant must
show a reasonable probability that an earlier disclosure would
have changed the trial's result." United States v. Dean,
55 F.3d 640, 663 (D.C.Cir. 1995). Because "[n]either Brady. . . .
nor any other case requires that disclosure under Brady must be
made before trial," United States ex rel. Lucas v. Regan,
503 F.2d 1, 3 n. 1 (2d Cir. 1974), due process simply requires that
disclosure must not occur so late as to prevent the defendant
from "mak[ing] effective use of it." United States v. Paxson,
861 F.2d 730, 737 (D.C.Cir. 1988); see also United States v.
McPartlin, 595 F.2d 1321, 1346 (7th Cir. 1979) (relevant
question is "whether the disclosure came so late as to prevent
the defendant from receiving a fair trial").
This rule does not insulate prosecutors from ever violating
Brady as long as they turn over material sometime before trial
commences or before it becomes relevant during the course of the
trial. Some Brady material "is of such significance that it
must be provided to the defendant well in advance of the trial so
as `to allow the defense to use the favorable material
effectively in the preparation and presentation of its case.'"
United States v. Green, 144 F.R.D. 631, 645 (W.D.N.Y. 1992)
(quoting United States v. Pollack, 534 F.2d 964, 973 (D.C.Cir.
1976)); see also United States v. Deutsch, 373 F. Supp. 289, 290
(S.D.N.Y. 1974). Admittedly, the People's failure to promptly
turn over the relevant grand jury testimony in this case was
wrong.*fn3 When a victim, whose alleged assault forms the basis
for various counts in the indictment specifically testifies
before the grand jury that she was never assaulted by the
defendant, the materiality of such testimony to the defendant's
case is obvious. The People should have provided the petitioner
with this testimony well before the eve of trial, since that
testimony was given approximately two years prior to the
commencement of trial. Nonetheless, we now hold that the People's
handling of this evidence, although careless, does not rise to
the level of constitutional violation.
Crucial to our assessment is that the petitioner was provided
with these minutes before the trial commenced and before that
testifying witness took the stand, and petitioner has presented
this court with no evidence that his effective use of that
evidence was so impacted as "to put the whole case in such a
different light as to undermine confidence in the verdict."
Kyles v. Whitley, 514 U.S. 419, 435, 115 S.Ct. 1555, 131
L.Ed.2d 490(1995). Since no suppression of the evidence occurred
here, petitioner's claim is grounded in the unsupported ...