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January 15, 2004.

BEN GERSTEN (00-A-0546), Petitioner, -against- DANIEL SENKOWSKI, Superintendent of Clinton Correctional Facility, Respondent

The opinion of the court was delivered by: JACK WEINSTEIN, Senior District Judge Page 2



I. Introduction

  Sexual abuse of a daughter by her father is a heinous crime. Here the trial record graphically details almost-nightly rapes and sodomizing of a young girl in her family home by her parent over many years, Such an accusation requires a skilled defense, See Eze v. Senkowski, 321 F.3d 110 (2d Cir. 2003); Pavel v. Hollins, 261 F.3d 210 (2d Cir. 2001); Lindstadt v. Keane, 239 F.3d 191 (2d Cir. 2001) (importance of effective representation for defendants in child sexual abuse prosecutions). Since such oases frequently hinge on the credibility of the child, the Court of Appeals for the Second Circuit has declared that "defense counsel is obliged, wherever possible, to elucidate any inconsistencies in the complainant's testimony, protect the defendant's credibility, and attack vigorously the reliability of any physical evidence of sexual contact between the defendant and the complainant." Eze, 321 F.3d at 112.

  Whether these standards were met in this case presents a troubling question. For the reasons stated below, it is answered in the negative. The state trial and appellate record and a hearing in this court support the conclusion that trial counsel failed his client.

  Petitioner, a law school graduate who passed the New York Bar examination but apparently never practiced as an attorney, was charged with the sodomy and sexual abuse of his daughter. A bench trial, insisted upon by petitioner in opposition to his attorney's advice, resulted in conviction on all charges and a lengthy prison term,

  Trial counsel failed to consult with or call an expert medical witness regarding the physical indicia of sexual abuse. Had he done so he would have been in a position to rebut critical aspects of the testimony of the People's medical expert at trial, significantly calling into question whether the physical examination of the daughter revealed penetrative trauma to her Page 4 vagina and anus. In light of the daughter's allegations of continuing rape and sodomy over a period of years, the absence of physical indicia of such abuse would necessarily have been troubling to a trier of fact, Counsel's unexplained and unreasonable failure to present this and other potentially exculpatory evidence significantly undermines confidence in the outcome of the trial.

  II. Facts and Procedural History

  Petitioner was charged with six counts of sodomy in the first degree, two counts of sexual abuse in the first degree, and one count of endangering the welfare of a child, The acts charged occurred during the period from March 1995 to December 1998 when the daughter was between ten and thirteen years old. He was convicted on all nine counts, The trial court imposed a sentence of consecutive indeterminate terms of imprisonment of twelve and one-half to twenty-five years on the first three counts of sodomy in the first degree, concurrent indeterminate terms of imprisonment of twelve and one-half to twenty-five years on the remaining three counts of sodomy in the first degree, concurrent determinate terms of incarceration of seven years on each sexual abuse conviction, and a concurrent sentence of one year imprisonment for endangering the welfare of a child. He was designated a sex offender pursuant to the Sex Offender Registration Act, See N.Y. Correction L., art. 6-C. The lengthy imprisonment (under probable high risk of physical harm if other prisoners become aware of his crime) and the lifetime legal and social stigmas constitute a heavy punishment.

 A. Pretrial Proceedings

  Prior to the commencement of trial, a Ventimiglia hearing was held, See People v. Ventimiglia, 420 N.E.2d 59 (N.Y. 1981) (providing for a hearing in which the court assesses the Page 5 probative force and prejudicial effect of any uncharged crimes sought to be introduced at trial). The prosecution sought to introduce, as part of the People's direct case, evidence that petitioner (1) began sexually abusing his daughter when she was five years old — years before the charged crimes occurred — and that the abuse escalated to petitioner forcing her to perform oral sex on him when she was seven years old; and (2) forced his daughter to have vaginal intercourse with him twice during November 1998, when she was thirteen years old, at his mother's apartment. These crimes were not charged in the indictment.

  The prosecution argued that this evidence was relevant in establishing the forcible compulsion element of sodomy in the first degree and in showing a pattern or course of conduct by petitioner, Defense counsel opposed the prosecutor's application and argued for preclusion of all evidence of uncharged crimes,

  The court ruled that the prosecution could introduce as part of the People's direct case, but solely for the purpose of permitting the court to fully understand the victim's testimony, evidence that petitioner began sexually abusing his daughter when she was five. The court also permitted the prosecution to introduce evidence that petitioner forced his daughter to have vaginal intercourse with him on two occasions in November 1998. It stated that it would consider these acts only as they pertained to the daughter's state of mind, to the medical evidence presented, and to the timing of the daughter's disclosure of the abuse.

 B. Trial

  1. The People's Case

  a. The Daughter

  At trial, petitioner's daughter gave detailed testimony of her father's sexual abuse. She Page 6 testified that, beginning when she was five years old, her father began entering her bedroom at night and touching her on her chest and between her legs. When she was seven years old, he began inserting his penis into her mouth and having anal intercourse with her, He also placed his mouth on her vagina. The sexual abuse continued almost every night despite her continued picas to stop. Even after her parents separated and petitioner moved out of the family home, he continued to abuse his daughter during her overnight visits. On two occasions when the daughter was visiting her father at his mother's apartment, he forced her to have vaginal intercourse with him. She said that her father threatened to kill her if she told anyone about the abuse.

  She went on to testify that between March 15 and March 30, 1995, petitioner entered her bedroom on a nightly basis and sexually abused her. On some nights, he inserted his penis into her mouth and ejaculated. On other nights, he inserted his penis into her anus. Several limes he placed his mouth on her vagina. On December 13, 1998, he rubbed her vagina and grabbed her hand, pushing it down the front of his pants.

  Despite these events, the child testified that she loved the "good daddy" who took her places and spent time with her, but feared the "bad daddy" who abused and threatened her. She never complained to her therapists, her boyfriend or her mother during the years leading up to the prosecution. At the sentencing, she asked that the maximum sentence be imposed.

  Before the alleged sexual attacks, the daughter had been diagnosed as having Attention Deficit Disorder, She was placed on a high dose of Ritalin and later was given Lithium and Prozac, Nevertheless, her grades were apparently in the range of B to A throughout her years at school except for a year or so prior to trial. No behavioral problems suggested sexual abuse. Throughout the cross-examination, the daughter remained unshaken and cogent, suggesting a Page 7 highly intelligent and articulate youngster.

  b. The Wife

  Elaine Gersten, petitioner's former wife and the mother of the victim, testified that her daughter always did very well in school, but she was very fearful about going to bed at night, experienced nightmares, and often pleaded with her mother not to leave her, As a result of her problems, the daughter received therapy. Sometimes when bathing her daughter when she was a young child, Ms. Gersten noticed a redness about her vagina, but did not take steps to find out the cause. Despite the fact that the marital bedroom she shared with her husband adjoined that of their daughter, she testified she was never aware of the sexual abuse occurring next door in the daughter's bed,

  Ms. Gersten further stated that her husband disappointed her because he seemed incapable of holding a job despite his law degree, She, by contrast, was a successful business woman often away from home, She described their divorce as relatively amicable with no issues concerning custody or visitation.

  After the divorce, her daughter did not want to see her father and became increasingly angry and fearful of seeing him, When her daughter first told her of the sexual abuse in an emotional outburst one night, the matter was immediately reported to the authorities. The prosecution proceeded apace,
c. The Child Psychologist
  Dr. Donald J. Lewittes, a clinical psychologist specializing in child and adolescent trauma including child sexual abuse, testified about Child Sexual Abuse Accommodation Syndrome. He explained that the syndrome covers different stages or processes generally experienced by Page 8 children who are sexually abused and, in particular, by children sexually abused by family members. Although every child is unique and will have idiosyncratic reactions to intra-familial sexual abuse, five elements make up the syndrome: secrecy, helplessness, disclosure, entrapment and accommodation, and emotions experienced as a result of trauma. He also testified that when a child reaches adolescence and becomes more aware of his or her sexuality disclosure of incidents of sexual abuse are triggered. He opined that school performance is not determinative of whether a child has been sexually abused,

  d. The Examining Physician

  Dr. Bella Silecchia, director of pediatric services and the Suspected Child Abuse and Neglect Evaluation Program at the Nassau County Medical Center, testified about the results of her physical examination of petitioner's daughter. She explained the process whereby the genital area was magnified and photographed using a device known as a colposcope and detailed what she observed during the examination and later on the colposcopic slides. The doctor opined that the daughter had suffered penetrating trauma to her hymen and tearing of the anus. Although she did not offer an opinion as to the cause of the trauma, she stated that it was not caused by masturbation,
e. The Boyfriend
  The daughter's former boyfriend testified that during their relationship, he and the daughter occasionally engaged in "mutual masturbation," They never engaged in oral sex or vaginal or anal intercourse, and he never inserted anything into her vagina or anus,

  2. The Defense

  Petitioner did not testify at trial. He called no witnesses, Page 8

 C. State Direct Appeals

  The Appellate Division modified the judgment by reducing the minimum term of incarceration on each count of first-degree sodomy to eight and one-third years. Otherwise, it affirmed With regard to petitioner's contention of ineffective assistance of counsel, the court found, "under the totality of circumstances existing at the time of representation, the defendant received meaningful representation." People v. Gersten, 719 N.Y.S.2d 900 (N.Y. App. Div. 2001). Leave to appeal to the New York Court of Appeals was denied. People v. Gersten, 756 N.E.2d 87 (N.Y. 2001).

 D. State Collateral Attacks

  While his direct state appeal was pending, petitioner filed a motion, pursuant to section 440.10 of the New York Criminal Procedure Law, to vacate the judgment of conviction on the ground mat he was deprived of effective assistance of trial counsel Specifically, petitioner alleged mat his trial counsel conducted an inadequate pre-trial investigation, improperly failed to call expert witnesses to contradict the People's expert witnesses, improperly neglected to request a Frye hearing, inexcusably failed to show a motive for the daughter to lie about being sexually abused by petitioner, unadvisedly waived a jury trial, and failed to use a diary and information concerning the daughter's use of the Internet during cross-examination.

  The trial court denied the motion, stating, "At trial defense counsel vigorously cross-examined the People's expert witnesses. Counsel neutralized the impact of Dr. Silecchia at trial." See Respondent's Exhibits, Vol. II, Exhibit 11, at 3. With respect to the claim that trial counsel should have called an expert witness, the court noted that, even without consulting a medical expert, defense counsel was able "to put forth his theory of the case by getting the Page 10 Doctor to admit that what she observed about the victim could have come from non-sexual abuse related activity." Id. It found that defense counsel made decisions and conducted the trial in accordance with a clear trial strategy which was that there were non-sexual abuse explanations for what happened to the victim and that she was lying about the ...

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