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June 16, 1999


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, the 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.

I. Speedy Trial Claim

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 evidence.

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 with 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.

II. Brady Claim

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 ...

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