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Herington v. Poole

December 4, 2009


The opinion of the court was delivered by: Honorable Michael A. Telesca U.S. District Court Judge.



Pro se petitioner Timothy P. Herington ("Herington" or "Petitioner") filed a timely petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges the constitutionality of his custody following his conviction in New York State County Court, County of Livingston, after a jury trial, on eight counts of sodomy in the second degree (New York Penal Law ("Penal Law") 130.45[1]).

For the reasons set forth below, the petition is denied.


A. Factual Background

Petitioner's conviction rests on facts found by the jury showing that he repeatedly sexually abused his step daughter, K.B., when she was only ten-years-old.*fn1 K.B. testified that her mother married Petitioner in 1992 and that they divorced five to seven years later. Trial Tr. ("T.") 535. She went on to testify that when she was in the third grade, she moved into a trailer home with her mother, Petitioner, and Petitioner's son. T. 536-537. In 1996 when K.B. was ten, Petitioner and K.B.'s mother had a daughter.

T. 537. About the same time that the daughter was born in September 1996, Petitioner and K.B. were riding in Petitioner's truck. Petitioner asked K.B., now in the fifth grade, if she had ever watched pornographic movies. K.B. said no. Petitioner asked if she wanted to, and told her that since he liked to watch them late at night, K.B. could "take a glance" at the videos because she could see the television from her bedroom. T. 537-539, 542.

One night after this conversation, Petitioner came into K.B.'s bedroom and asked if she had watched the pornographic videos. She said no, and Petitioner responded by telling her to "take a glance out the door when I go back in the living room." T. 540-541. K.B. did as Petitioner asked and stood by her door to watch the video for a couple of minutes before going back to bed. Id. After she returned to bed, Petitioner came into her room, asked her if she liked the video, and proceeded to touch her vagina underneath her clothes while he masturbated. T. 541-542.

Over the next month, Petitioner continued and escalated his abuse by putting his mouth on K.B.'s vagina and having K.B. put her mouth on his penis, telling her to "go back and forth with [her] mouth on his penis." T. 542, 545. Petitioner abused K.B. at night while her mother was asleep in the back bedroom of the trailer with the couple's baby daughter. T. 543. At the outset of his abuse, Petitioner told K.B. that if she told anyone, no one would believe her and it would break up the family. T. 544.

Petitioner continued his pattern of abuse "three or four times a week." T. 545, 551-552. Each time, Petitioner would instruct K.B. to watch a pornographic film, and then he would enter her bedroom and put his mouth on her vagina and she would put her mouth on his penis. T. 545-546. K.B. was ten years old when the abuse started and turned eleven during the course of the abuse. T. 551-552. Petitioner's sexual abuse of K.B. continued for about a year and stopped only when K.B.'s mother kicked Petitioner out of the trailer following a fight between the two, during which K.B. was knocked to the floor while trying to intervene, whereby she accidentally hit her little sister in the eye with her elbow leaving the little girl with a black eye. T. 546-550. After Petitioner moved out, K.B. did not have direct, one-on-one contact with him, except for one occasion in a public setting. T. 550.

In 1997, during the period of abuse and just before she began sixth grade, K.B. told a close friend that Petitioner sexually abused her. T. 554-555. Then, in 1998 at the beginning of seventh grade, K.B. told her mother a portion of the "story" of how petitioner abused her. T. 556. Her mother called the police to come to the house to speak with K.B., but K.B. did not tell the police everything because she was embarrassed and "didn't want to go to court." T. 556-557. K.B. subsequently went through counseling, after which she realized the abuse was not her fault, and that she should not be embarrassed. T. 558. In 2002, K.B. again spoke with the police and was then able to inform them of the nature of the abuse. T. 557.

At the outset of its case against Petitioner, the prosecution notified the court prior to jury selection that it intended to call Dr. David Coron as an expert witness to testify about "Child Abuse Accommodation Syndrome" ("CAAS").*fn2 T. 9. The prosecution said that Dr. Coron's testimony was necessary because it dealt with information beyond the scope of a juror's common knowledge and that he would simply "discuss and educate the jury as to Child Abuse Accommodation Syndrome" and would not rely on hypothetical examples similar to the Victim's experiences. T. 9. Defense counsel argued that Dr. Coron should not testify before the Victim because the jury would be confused and unable to assess the expert's testimony without hearing from the Victim first, and that counsel "would have to continually...refer to what I expect...the testimony of the complainant might be in order to ask [Dr. Coron] questions."

T. 11-12. The court declined to direct the prosecution to call witnesses in any particular order. T. 31, 481-482.

After jury selection, the defense again objected to Dr. Coron's testimony claiming that it could only be presented "in response to the suggestion by the defense that the inconsistencies in the [Victim]'s reporting or the recantations...indicate that she's not telling the truth." T. 410. The defense further moved to preclude Dr. Coron's testimony unless the court held a Frye/Daubert hearing to "determine how it can be admissible on direct." T. 410-411. The trial court denied the defense's objections to Dr. Coron's testimony. T. 416-418. Before the people presented Dr. Coron, the defense advised the court that it intended to "reserve [its] cross-examination" of Dr. Coron for when it intended to call him as its own witness. T. 482. The trial court refused to recall Dr. Coron for cross-examination after the Victim's testimony, and the defense never called Dr. Coron directly. T. 415(b), 524-528.

B. Procedural History: State Court Proceedings

After his conviction, Petitioner filed an appeal with the New York State Supreme Court, Appellate Division, Fourth Department, and raised the following grounds:

(1) the trial court committed reversible error by allowing the prosecutor to introduce highly sensitive expert testimony prior to any fact witness*fn3;

(2) the verdict was against the weight of the evidence;

(3) defendant's guilt was not proven beyond a reasonable doubt;

(4) the trial court committed reversible error by preventing the appellant from introducing exculpatory evidence at trial; and

(5) the sentence was harsh and severe. Resp't Ex. A (Br. for Appellant) at 4.*fn4 The Appellate Division affirmed Petitioner's conviction. People v. Herington, 11 A.D.3d 931 (4th Dept. 2004). Petitioner sought leave to appeal to the New York Court of Appeals raising the same grounds as he did in the Appellate Division, but leave was denied. People v. Herington, 4 N.Y.3d 799 (2005).

Petitioner then filed the instant petition for a writ of habeas corpus. "Pet." (Docket No. 1).


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