Fourth Department – Ineffective assistance of counsel: People v. Thanthima

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New York State Supreme Court, Appellate Division, Fourth Judicial Department

Ineffective assistance of counsel — Prosecutorial misconduct

People v. Thanthima

KA 25-01023

Appealed from Onondaga County Court

Background: The defendant appealed from his conviction of predatory sexual assault and endangering the welfare of a child. He argues he was deprived of a fair trial due to prosecutorial misconduct and ineffective assistance of counsel.

Ruling: The Appellate Division affirmed. The court agreed that it was improper for the prosecutor to ask an investigator whether he believed the defendant was being truthful with him during his interview with the investigator, but it did not deprive the defendant of a fair trial. The testimony was cumulative as the jury also listened to the recording of the defendant’s interview with the investigators, during which they repeatedly expressed their disbelief in the defendant’s statements. Furthermore, the Appellate Division held that it was proper for the prosecutor to elicit testimony and comment on all instances of oral sexual conduct. Thus, the failure to object to the testimony does not constitute ineffective assistance of counsel.

Melissa K. Swartz, of Cambareri & Brenneck, for the defendant-appellant; Elisabeth Dannan, of the district attorney’s office, for the respondent.

Oral argument video