Full opinion text
MEMORANDUM AND ORDER WEINSTEIN, Senior District Judge. Table of Contents I. Introduction.224 II. Facts.226 A. Overview.226 B. Testimony of Complaining Witnesses.226 1. Child J.N.227 a. Charges Related to J.N.227 b. Grand Jury Testimony of J.N.227 c. State Examination of J.N. at Trial.229 d. Defense Examination of J.N. at Trial .229 e. Jury Verdicts on Charges Related to J.N.232 f. Disposition of Charges Related to J.N. on Appeal.232 2. Child J.C.232 a. Charges Relating to J.C.232 b. Grand Jury Testimony of J.C. c. State Examination of J.C. at Trial. d. Defense Examination of J.C. at Trial. e. Jury Verdicts on Charges Relating to J.C. f. Disposition on Appeal of Charges Relating to J.C. 3. Child C.H. a. Charges Related to C.H. b. Grand Jury Testimony of C.H. c. State Examination of C.H. at Trial. d. Defense Examination of C.H. at Trial. e. Jury Verdicts on Charges Relating to C.H. f. Disposition of Charges Related to C.H. on Appeal 4. Child G.B. a. Charges Related to G.B. b. Grand Jury Testimony of G.B. c. “Vulnerable Child Witness” Hearing. d. State Examination of G.B. at Trial. e. Defense Examination of G.B. at Trial. f. Jury Verdict on Charges Related to G.B. g. Disposition of Charges Related to G.B. on Appeal, 5. Child B.D. a. Charges Related to B.D. b. Grand Jury Testimony of B.D. c. State Examination of B.D. at Trial. d. Defense Examination of B.D. at Trial. e. Jury Verdicts on Charges Related to B.D. f. Disposition of Charges Related to B.D. on Appeal 6. Child P.W. a. Charges Related to P.W. b. Grand Jury Testimony of P.W. c. State Examination of P.W. at Trial . d. Defense Examination of P.W. at Trial. e. Jury Verdicts on Charges Related to P.W. f. Disposition of Charges Related to P.W. on Appeal 7. Child C.S. a. Charges Related to C.S. b. Grand Jury Testimony of C.S. e. State Examination of C.S. at Trial. d. Defense Examination of C.S. at Trial. e. Jury Verdicts on Charges Relating to C.S. C. Testimony of Other State Witnesses. 1. Detective Vashti Anderson. 2. Child Protective Services Caseworker Daniel Speicher 3. Parents of the Victims. D. Defense Case. 1. Defense Fact Witnesses. 2. Testimony of Defendant. 3. Character Witness . E. Defendant’s Application to Proceed Pro Se. F. Appointment of Standby Counsel. G. Summation . H. Motions at End of Case. I. Verdict and Sentence. III. Procedural History of Direct Appeal. CO cn ^ A. Summary of Jelinek’s Posh-Trial Representation. to cn ^ B. Direct Appeal. to m ^ C. Material Variance Issue in State Court. to en rfx D. Leave to Appeal to State Court of Appeals. CO üi cn IV. Procedural History of Initial Federal Habeas Proceedings (Filed as 97-CV-2327).255 V. Procedural History of First State Section 440 and Coram Nobis Proceedings. to CR CR VI. Procedural History of Recommenced Federal Habeas Proceedings (Filed as 98-CV-2298). to C7I VII. Procedural History of Second State Section 440 and Coram Nobis Proceedings. trio 03 VIII. Procedural History of Current Federal Habeas Proceedings (Filed as 01-CV-2566). to cn co A. Pleadings. to cn B. Factual Hearing to o\ 1 cc o; AEDPA Standard of Review.261 í> Statute of Limitations.261 td Exhaustion .262 O Procedural Bar.263 U 1. In General.263 2. Cause for the Default.263 3. Actual Innocence.263 Ineffective Assistance of Counsel.264 fed 1. Tn General .264 a. Ineffective Assistance of Trial Counsel.264 b. Ineffective Assistance of Standby Counsel.265 c. Ineffective Assistance of Appellate Counsel.266 d. Strategic Choices.267 e. Exhaustion of Individual Claims of Ineffectiveness.267 Failure to Dispute Government’s Variance from the Indictment.267 to Failure to Object to the Sufficiency of the Evidence.270 co Failure to Call Expert Witness.271 ^ Failure to Call Fact and Character Witnesses.272 oi Failure to Consult with Defendant.272 05 Failure to Read Rosario Material .273 -4 Failure to Request a Bill of Particulars and to Move for Severance of Child Endangerment Charges.273 00 Failure to Object to Indirect Hearsay.274 Failure to Introduce Witness’s Prior Inconsistent Statements into Fjvidence.274 11. Failure to Object to Introduction of Defendant’s Inculpatory Statements.275 12. Spillover Effect.276 Confrontation Clause.277 Due Process Clause.278 1. Variance from the Indictment.278 2. Admission of Uncharged Crimes Testimony into Evidence.279 3. Prolonged and Suggestive Questioning of Child Witnesses by the Police.279 4. Trial Court’s “Vulnerable Witness” Inquiry.279 Sixth Amendment Right to Notice.280 Discretion to Fashion Relief.280 X. Application of Law to Facts.280 A. Timeliness.280 B. Ineffective Assistance of Trial and Appellate Counsel.281 1. Preliminary Observations. i/j 04 a. Wealth and Representation. uj 04 b. Generally Competent Performance of Trial Counsel 04 c. Separate Claims of Ineffective Assistance of Trial and Appellate Counsel. lO ia) 04 2. Unexhausted Ineffective-Assistance Claims . tO uj 04 a. Failure to Object to Indirect Hearsay. CO uj 04 b. Failure to Consult Experts. CO 04 c. Failure to Challenge Variance from the Indictment. CR 04 3. Exhausted But Procedurally Defaulted Ineffective Assistance Claims. OO 04 a. Failure to Call Character Witnesses. ÍD 04 b. Failure to Call Defendant’s Wife as Fact Witness. CD 04 c. Failure to Consult with Defendant. O 04 d. Failure to Read Rosario Material. uj 04 e. Failure to Request Bill of Particulars and Keep Out Uncharged Crimes Evidence. us 04 f. Failure to Object to Inculpatory Statements. us 04 g. Failure to Impeach with Prior Inconsistent Statements us 04 h. Failure to Object to Sufficiency of Evidence. us 04 C. Confrontation Clause Claim. us 04 D. Due Process Clause Claims. us 04 1. Uncharged Crimes Evidence . us 04 2. Suggestive Questioning of Child Witnesses. us 04 3. Vulnerable Witness Inquiry. us 04 4. Variance from the Indictment. us 04 E. Sixth Amendment Claim. us 04 I. Introduction The crux of the case is this: At a state trial, defendant’s otherwise competent standby trial counsel may have performed inadequately by failing to advise his pro se client to move to dismiss two sodomy counts (Seven and Eleven) because of a variance between the indictment and proof — essentially how, when and where relevant incidents occurred. See Part X.B.2.C, infra. To now challenge his convictions on these counts, petitioner must show that otherwise competent appellate defense counsel was ineffective for failing to argue this point on direct appeal — an argument that has not been explicitly raised in the Appellate Division collaterally. The sexually abusive acts the jury found defendant guilty of would have had a devastating impact on the children and their parents whether the instrument of defendant’s violation was his hands, his mouth or his penis. Nevertheless, those distinctions are important in determining whether there were legally significant variances between two felony counts as charged and as proved. The instant federal case seeking a writ of habeas corpus must be stayed to permit petitioner to attempt to exhaust his state coram nobis rights in the Appellate Division. To explain how and why this conclusion is reached, this memorandum addresses the applicable federal and state criminal collateral attack practice. This long-delayed case raises profound questions of due process, of the intricacies of procedure in state and federal courts, and of the inadequacies of state counsel. Total innocence is not implied. Roger Jelinek, a New York State prisoner sentenced to up to twenty-seven years in prison for abusing a number of children, alleges, among other complaints, that he received ineffective assistance of trial and appellate counsel in violation of the Sixth and Fourteenth Amendments, and that trial and appellate errors resulted in the violation of his federal constitutional rights under the Confrontation and Due Process Clauses. This matter has moved back and forth between the state and federal courts for some years. To the law’s chagrin, its resolution must be delayed yet again. The case will be stayed to alow the petitioner to present apparently non-exhausted claims to a state court. Should state relief be denied, he will have the opportunity to return once again to the federal courts. A reasonable reading of the record supports the conclusion that Jelinek was probably in fact guilty of a number of the counts for which he was convicted. Compare the miscarriages of justice in such cases described in Dorothy Rabinowitz, No Crueler Tyrannies (2003). Six boys, aged eight to sixteen, testified at trial that Jeli-nek sexually molested them over four years. Most of the allegations concerned improper touching, but several of the counts in the indictment charged sodomy in the first degree — that is to say, insertion of a penis into a mouth or rectum. For the most part the testimony of the child victims was convincing and compelling. Of the forty-three charges, the jury convicted on all but five. Like most trials, this one was not error free. On direct appeal half of the counts for which Jelinek was convicted were vacated by the Appellate Division, including one-third of the felony convictions — on the ground that the indictment was duplicitous with respect to those counts. Another felony conviction was reversed because, as the state itself acknowledged, the jury had convicted Jelinek on that count despite the fact that absolutely no evidence had been presented at trial in its support. The remaining convictions were therefore allowed to stand. In committing these odious crimes, petitioner abused his positions of trust in the community. Substantial punishment was justified. A thorough review of the state court proceedings nonetheless strongly suggests a constitutional violation. Germane was the critical failure of counsel to protect Jelinek’s rights by moving to dismiss two of the first-degree sodomy counts charged against Jelinek after it became clear that the evidence presented at trial varied materially from what was alleged in the indictment. Appellate counsel apparently failed to bring this aspect of trial counsel’s deficient performance to the attention of the Appellate Division. As compelling as his claim to denial of due process may be, at this juncture a federal court is not authorized to provide relief. The reason is the labyrinthian structure of modern habeas jurisprudence — a sometimes befuddling conglomeration of procedural complexities, strict time limits and confounding case law— which society expects prisoners to noctam-bulate without the guiding hand of counsel. It is no surprise that state prisoners — or judges or lawyers themselves — pursuing complex claims of error-ridden trials, should fail repeatedly to assert the proper claims in the proper manner at the proper times before the proper tribunal. See, e.g., Miller-El v. Cockrell, - U.S. -, 123 S.Ct. 1029, 1042, 154 L.Ed.2d 931 (2003) (federal court of appeals misunderstands its role on appeal). A state prisoner seeking a writ of habe-as corpus plays a giant and deadly game of Chutes and Ladders. Every advance through the court system holds the potential for significant frustration as the pro se petitioner tries to move through such bewildering hazards as time bars, exhaustion doctrine, procedural defaults, independent and adequate state grounds, cause and prejudice, and mixed petitions. The prize in this game, even if skillfully played by an often uncounseled, ill-educated and penurious player, is the reward of having his constitutional claim actually adjudicated on the merits in federal court. It is a prize not often won in this Sisyphean-like contest. And, even when the federal court is freed to consider the merits, the sought after award — a “Get Out of Prison” card— is rarely granted. The present case is complicated. Represented at trial by an attorney who had lost interest in the case when his full fee was not paid, counseled on appeal by a lawyer who achieved a great deal but missed one of the main points of a meritorious constitutional argument, left without an attorney to contend with technical post-conviction doctrines, Jelinek is once again before a federal court. He has been back and forth from state court to this court three times, and must return to the state for a fourth cycle. Each time Jelinek fails to state his claims precisely he is in danger of defaulting on those claims, risking that they can never be heard on the merits. His predictably deficient pro se attempts in the state to present even his meritorious claims for adjudication may, in the end, require a federal court to deny him all relief. For the reasons set forth below, Jelinek’s petition will be stayed to allow him to return to state court, should he choose to do so, in order to exhaust his remaining, arguably viable claims. II. Facts A. Overview Jelinek, a married man with six children, was arrested in 1991 and tried in 1993 for sexually abusing seven boys from his neighborhood over several years. The state’s case rested almost entirely on the testimony of these boys — the youngest of whom was six years old when he appeared before the grand jury — along with the testimony of an investigating detective and a Department of Social Services caseworker. One of the alleged victims was allowed to testify via two-way, closed-circuit television. No medical evidence was introduced. The defendant testified, recalled several state witnesses, and presented a pair of character witness. He delivered a closing argument himself after dismissing his attorney. What emerges from the trial testimony is a chiaroscuro portrait of Jelinek as both pillar of the community — natural and adoptive father, Little League coach, Cub Scout official, volunteer meal-provider to the elderly — and sexual predator who abused his positions of trust. The jury convicted Jelinek on most, but not all counts. It acquitted him altogether of the charges he faced with respect to the youngest of the alleged victims. The following encapsulation of the trial evidence presented demonstrates the strength of the state’s case with respect to many of the counts of conviction. It is also testament to the largely professional and competent representation that Jelinek received from trial counsel on his behalf at most stages of the trial. At the same time, the summary makes clear that trial counsel’s failure to recognize and object to substantial variances from the indictment relating to two of the most serious charges lodged against Jelinek arguably fell well below the constitutional minimum required of effective counsel. Because the ineffective assistance of counsel related most clearly to the alleged sodomy of J.N. and J.C., the synopsis begins with a description of their testimony. B. Testimony of Complaining Witnesses Each of the dozens of criminal acts for which Jelinek was indicted with respect to the alleged victims was listed in the indictment as having taken place in Nassau County. More specific information about the location of the alleged crimes was provided to the defendant by the state in a bill of particulars, and was presented to the jury by the prosecutor during her reading of the charges in her opening statement. There were many inconsistencies between the Grand Jury and trial testimony of a number of the complaining witnesses. Jelinek’s counsel in the Appellate Division compiled a chart, titled “Summary of Trial Testimony of Prior Uncharged Acts,” which sets forth many of these discrepancies and was presented on direct appeal. See Appendix. Although the chart is not complete, it accurately summarizes the views of appellate counsel. It may be of some service as a rough road map to many of the inconsistencies discussed below. 1. Child J.N. Jelinek was charged with a number of counts alleging that he improperly touched and sodomized J.N., an eight-year-old boy, who was a friend of two of Jelinek’s sons, all at defendant’s home. The most serious of the counts charged Jelinek with placing his mouth on the penis of J.N. When asked at trial whether the incident had occurred, J.N. unequivocally responded that it had not. Trial counsel nonetheless failed to move at any time to dismiss the count, and the jury convicted Jelinek on that sodomy count. There were substantial other discrepancies among J.N.’s testimony at two Grand Jury hearings and at trial. a. Charges Related to J.N. Count Eleven was for sodomy in the first degree, relating to an alleged incident on or about July 1991 in which Jelinek put his mouth on the penis of J.N. Five of the charges were for sexual abuse in the first degree. Count Twelve charged Jelinek with touching the penis of J.N. on or about and between June 15 and July 15 of 1991. Count Thirteen charged him with putting his mouth on the buttocks of J.N. on or about and between June 15 and July 15 of 1991. Count Fourteen charged him with touching the buttocks of J.N. on or about and between June 15 and July 15 of 1991. Count Fifteen charged him with touching the penis of J.N. on or about June 1991. Count Sixteen charged him with touching the buttocks of J.N. on or about June 1991. Count Seventeen charged Jelinek with the misdemeanor of endangering the welfare of a child, J.N., by engaging in sexual acts, “in the presence of or upon the person of’ J.N. on or about and between June 1990 and July 1991. As the prosecutor explained, “all of the sexual acts that the defendant performed on [J.N.] or in front of him constitutes and will be proof of endangering his welfare.... ” (Trial Tr. at 111.) b. Grand Jury Testimony of J.N. J.N. was eight years old when he testified before the Grand Jury in August and September of 1991. He testified at this first Grand Jury appearance that he was friends with two of Jelinek’s sons, that one of Jelinek’s daughters often babysat for him, and that he was often at the Jelinek home after school, occasionally sleeping over. When asked about an incident that allegedly occurred at Jelinek’s home after J.N. was released from school in June 1991, he responded in the hesitant, disjointed manner typical of the children examined in this case that touching only occurred: Q Did anything happen when you came home from school and went to Roger Jelinek’s house? A Yes. Q What happened? A I forgot. Q Did you forget? A Yes. Q You really forgot? Well, did the defendant do anything to you? A Yes. Q Do you know what it was that he did? A Yes. Q Can you tell us what he did? A He gave me a little squeeze and he squeezed my tushie. Q I didn’t understand the first thing you said.... What did you say first? A He gave me a weenie squeeze. Q A weenie squeeze? A Yes. Q What’s a weenie squeeze? A When he squeezes it. Q What’s it? A My penis. Q This was in June when you came home from school? A Yes. Q You said he gave you a weenie squeeze. What else did he squeeze? A My tushie. (Aug. 22, 1991 Grand Jury Tr. at 40-42.) J.N. was then asked about another incident that allegedly occurred in July 1991: Q Do you remember a day when you were at the defendant’s house when [J.C., another alleged victim] was there too? A I can’t remember it. Q What? AI can’t remember it. Q Has [J.C.] ever been to Roger’s house? A Yes. Q How do you know that? A When I come over, he is there. Q Okay. When you went over there and [J.C.] was there, did anything happen? A Yes. Q What? A He gave me a weenie squeeze and he squeezed my butt. Q Who gave you a weenie squeeze? A Roger [Jelinek]. Q [J.C.] was there at the time? A Yes. Q Did the defendant do anything else after he gave you a weenie squeeze on the day that [J.C.] was there? A No. Q When the defendant gave you a weenie squeeze, did you have your clothes on? A Yes. Q Did you ever not have your clothes on when you were with the defendant? A Yes, when I came from the shower. Q Did anything happen when you didn’t have your clothes on? A Yes, he gave me a tushie bite. Q A tushie bite? A Yes. Q ' Did anything else happen? A No. Q Do you remember when it was that he gave you a tushie bite? A After he started — after he did the penis squeeze and the butt squeeze. CM at 42-48.) In his testimony at a subsequent Grand Jury appearance in September, J.N. expanded upon this account and testified for the first time that Jelinek put his mouth to J.N.’s penis: Q Did [the defendant] ever put his mouth anyplace? A Once. Q Where did he put his mouth? A On my penis. Q Was that in July of this year also? A Yes. (Sept. 27, 1991 Grand Jury Tr. at 36 (emphasis added).) c. State Examination of J.N. at Trial J.N. was nine years old at the time of the trial. He first testified that in June of 1991 Jelinek “touched my penis, gave me a tuschy squeeze, a tuschy bite, and wanted to put his, and went to put his — what do you call it? — penis in my mouth, once.” (Trial Tr. at 597.) According to J.N., this type of incident occurred every time he went over to Jelinek’s home, which was nearly every day. He further described an incident in which Jelinek “put his penis in my mouth” in the presence of J.C. (Id. at 598.) Later on direct examination the following exchange occurred: Q Did [Jelinek] do anything to you [in July]? A He gave me a tuschy squeeze, a tuschy bite, and he put his hands down my pants and once touched my penis and put his penis in my mouth. Q Did he put your penis in his mouth? A No. Q What did he do? A He put his penis in my mouth. (Id. at 601 (emphasis added).) Neither the prosecutor nor defense counsel called the jury’s attention to the fact that the trial was the first time J.N. had made the accusation that defendant had put his penis in J.N.’s mouth, or that the story diverged widely from that which he had told before the Grand Jury — i.e., that Jelinek had placed his mouth on J.N.’s penis rather than placing his penis in J.N.’s mouth. J.N. at trial also testified for the first time about an incident in July 1991 in which Jelinek allegedly took a picture of J.N. naked after emerging from the shower: Q And can you tell us what, if anything, happened, when you got out of the shower? A He took a picture. Q And did you have clothes on or no clothes on? A No clothes on. Q And what, if anything, did he say about the picture? A He was going to hang the picture on the bulletin [board] in the school. (Trial Tr. at 600.) d. Defense Examination of J.N. at Trial On cross-examination, J.N. agreed with defense counsel that his initial interview with a police detective and caseworker from Children’s Protective Services (“CPS”) lasted for nearly four hours. J.N. disagreed with counsel, however, that he was told by them that “they knew pretty much something had happened ... [and] had [his] name from other kids.” (Id. at 605.) He also acknowledged that before speaking with the caseworker and detective he never told anyone about the sexual abuse he allegedly suffered at Jelinek’s hands. Defense counsel sought to impeach aspects of J.N.’s trial testimony with the inconsistent statements he had made before the Grand Jury. In particular, counsel sought to show that although J.N. claimed to remember specific dates of events at trial, before the Grand Jury he stated that he could not remember such specifics. Even after defense counsel sought to refresh his recollection, however, J.N. stated that he did not recall the questions he was asked or the answers that he gave before the Grand Jury. Counsel then sought, unsuccessfully, to introduce into evidence the transcript of the Grand Jury testimony showing contradictions with the trial testimony: Q Now, do you remember going to the Grand Jury twice in 1991 ... ? AI don’t think so. Q Well, do you remember being asked these questions and making these answers— MS. WATSON [the prosecutor]: Judge, I object. He doesn’t even remember being at the Grand Jury. MR. KRIEGER [defense counsel]: Well, if I read it perhaps it will refresh his recollection, Judge. THE COURT: Well, refresh his recollection, if you can, first. Let him look at it to see if it refreshes his recollection. Q Read [the transcript of the Grand Jury testimony] to yourself from line 11 down to the bottom of that page. THE WITNESS: I don’t understand this. THE COURT: Let us know when you’re finished reading it and the lawyer will ask you questions. THE WITNESS: I don’t understand that. THE COURT: Ask your question. Q [J.N.], were you asked these questions— THE COURT: No, no. Does that refresh your recollection? Q Does that refresh your recollection? A No. THE COURT: Okay. Q Were you asked— MS. WATSON: Objection. THE COURT: No, sustained. MR. KRIEGER: I’d ask that the witness be shown ... page 42, fines 6 through 11? Q Do you remember being asked— THE COURT: No, no. Q The question— MS. WATSON: Objection. THE COURT: Sustained. Q Does that refresh your recollection about some questions and answers that you were asked and answers you gave in the Grand Jury? Do you know what the term “refresh” means? A No. THE COURT: If you can remember, if you look at that and then it triggers your memory of what happened, you would say yes. And if it doesn’t, you would say no? THE WITNESS: It don’t. THE COURT: Okay. MR. KREIGER: May we approach? THE COURT: Yes. (The following discussion took place at the bench:) THE COURT: Now, I’m not going to tell you how to present your case. One procedure is to refresh his recollection, another procedure, if you believe there is some inconsistency between testimony and anything he swore to previously, there is a way to get that in. But I’m not going to say now, and you have to show the inconsistency first. MR. KRIEGER: Well, the offer of proof— THE COURT: Where is the inconsistency? MR. KRIEGER: The inconsistency is done on the prior occasion. THE COURT: What prior occasion? MR. KRIEGER: On the Grand Jury. This witness under oath swore that he had forgotten two incidents that he was asked about by ADA Ennis. THE COURT: I don’t understand. He said under oath that he forgot what? MR. KREIGER: He asked — Let me show you. THE COURT: Where is the inconsistency? MR. KREIGER: Wherever he’s asked about a specific day and a specific month that he remembers now, but he didn’t remember then. {Id. at 608-13.) Counsel thereupon read to J.N. several portions of his testimony before the Grand Jury, asking him if he remembered the questions and answers. To all of counsel’s queries J.N. responded that he did not remember either the questions or the answers. After this bungling and hacking in a failed attempt to show a critical contradiction in the child’s testimony before the Grand Jury and at trial, defense counsel elicited from J.N. the more pallid admission that his recollection of events from about two years earlier was hazy at best, and may have resulted from practice in answering: Q So, would it be fair to say, then, that some things that happened back in August of 1991 in sort of an official setting you don’t remember? A No. Q And would it be fair to say that there are other things from the summer of 1991 that you don’t really remember? AI don’t remember. Q Actually, are there some things that you were telling when you were speaking today, when Ms. Watson [the assistant district attorney] was questioning you — She was the first one that talked to you here after the jury came in, right? A Yes. Q When you answered Ms. Watson’s, questions here this afternoon and you gave some answers, were those from having practiced those answers or did you really remember? AI remembered. Q And was there a time back in August of 1991 when you didn’t really remember? A Yes. Q You didn’t? A Not all of it. Q Well, you remember more of it now than you did then? A A little, yeah. Q That’s because you went over it a lot of times? A A little. {Id. at 616-17.) Defense counsel failed'to demonstrate to the jury the fact that J.N. had outright denied the facts of the sodomy allegation that was charged in Count Eleven of the indictment or that the Grand Jury testimony and the trial testimony were quite inconsistent with respect to whose mouth was placed on whose penis. e. Jury Verdicts on Charges Related to J.N. The jury convicted Jelinek on all seven of the counts in the indictment charging J.N. as the victim. f. Disposition of Charges Related to J.N. on Appeal The Appellate Division dismissed four of the seven counts of conviction relating to J.N. because these counts were duplicitous — meaning that there was evidence at trial of multiple crimes for which the jury might have found the defendant guilty with respect to each of these counts, leaving it unclear whether the jury had decided unanimously to find Jelinek guilty for the same conduct. The dismissed counts were for sexual abuse in the first degree with respect to the four alleged incidents in which Jelinek touched J.N.’s buttocks and penis. The remaining convictions, including that for first-degree sodomy, were affirmed. 2. Child J.C. Jelinek was charged with a number of counts alleging that he improperly touched and sodomized J.C., an eight-year-old boy who was a friend of one of his sons and whom he coached in Little League. As was the case with the sodomy count relating to J.N., the evidence offered at trial with respect to the alleged sodomy of J.C. varied from what-was charged in the indictment. Specifically, Jelinek was charged with putting his penis to the anus of J.C. at Jelinek’s home, but evidence at trial indicated only that such an incident occurred at a public beach. a. Charges Relating to J.C. In all, eight counts in the indictment were for conduct in which J.C. was the alleged victim. Jelinek was accused of sodomy in the first degree relating to two incidents. In Count One — as amplified by the bill of particulars — he was charged with putting his mouth on the penis of J.C. in his home on or about June 1991. In Count Seven he was charged with placing his penis on the anus of J.C. at his home on or about July 1991. Jelinek was accused of sexual abuse in the first degree relating to another five alleged incidents. In Count Two, he was charged with touching the penis of J.C. in his home on or about June 1991. In Count Three he was charged with touching the penis of J.C. at Tobay Beach, in Nassau County, on or about July 1991. In Count Four he was charged with rubbing his penis against the leg of J.C. at Tobay Beach on or about July 1991. In Count Five he was charged with touching the penis of J.C. in his home on or about June 1990. In Count Six he was charged with touching J.C.’s buttocks at his home on or about June 1990. In Count Eight Jelinek was charged with the misdemeanor offense of endangering the welfare of a minor, J.C., by, on or about and between June 1990 and July 1991, engaging in sexual acts in the presence of and upon the person of J.C. — a charge which, as the prosecution explained to the jury, “incorporates the other acts, the touching of the penis, the touching of the buttocks, and the other acts alleged in the earlier counts of the Indictment with respect to [J.C.].” (Trial Tr. at 104.) b. Grand Jury Testimony of J.C. J.C. was eight years old at the time he gave his Grand Jury testimony. He testified that he knew Jelinek both as his Little League baseball coach and as the father of his Mend, Jason. During his Grand Jury testimony, J.C. first described an incident in June 1990 in which Jelinek “tickled me and touched my private spots” — i.e., his “weenie and butt.” (Aug. 22, 1991 Grand Jury Tr. at 12-13.) He also testified that Jason Jelinek and J.N. were in the house while this incident occurred (Sept. 27, 1991 Grand Jury Tr. at 18), and that the same type of touching occurred “like five” times between June 1990 and June 1991 (Aug. 22,1991 Grand Jury Tr. at 13). J.C. then told the Grand Jury that Jeli-nek, in June 1991 at his house, “asked me to sit on his lap and I sat on his lap. And Jason ... was upstairs, and me and [the defendant] went downstairs in the living room watching TV, and he would put like — he would touch me in my private spots and put his mouth on my weenie.” (Id. at 14.) Before the Grand Jury in September, J.C. testified that J.N. was also present during this incident. J.C. next described an incident that allegedly occurred at Tobay Beach in July 1991. He and a number of boys — including alleged victims J.N. and B.D., as well as Jelinek’s sons Michael and Jason — had been taken to the beach by Jelinek. At one point everyone was swimming except for J.C. and Jelinek. J.C. testified that Jelinek wrapped a towel around him, sat him on his lap, touched J.C.’s penis over his bathing suit, and “put his weenie on my leg and rubbed it.” (Id. at 16-17.) J.C. did not testify about the rubbing incident at trial. After describing the Tobay Beach incident, J.C. further testified that his “butt” had hurt: Q Do you remember telling your mommy you hurt someplace? A Yes. Q Where did you hurt? A My butt. Q When you told your mommy you hurt in your butt, did you know why you hurt in your butt? A Yes. Q Can you tell the Grand Jurors why you hurt in your butt? A Roger Jelinek did it. Q What did Roger Jelinek do? A He put his weenie on my butt. Q When you say he put his weenie, that’s he put the same kind of thing that you have, right? A Yes. Q He put that in your butt? Did he actually put it inside? A No, not really. Q Did he touch your butt with his weenie? A Yes. (Id. at 17-18 (emphasis added).) It is not clear from the August Grand Jury testimony whether this incident occurred at Tobay Beach, but during his September Grand Jury appearance, J.C. testified that it was while in Jelinek’s house in July 1991 that Jelinek “put his weenie on my butt,” leading him to eventually tell his mother that he had pain in the buttocks area. (Sept. 27, 1991 Grand Jury Tr. at 21-22 (emphasis added).) Finally, J.C. testified at the Grand Jury that, sometime between the middle of June and the middle of July 1991, he witnessed the defendant “put his mouth on [J.N.’s] weenie ” at Jelinek’s home. (Aug. 22, 1991 Grand Jury Tr. at 19 (emphasis added).) c. State Examination of J.C. at Trial Just prior to J.C.’s testimony, defense counsel learned that J.C. would testify concerning uncharged criminal acts allegedly performed by Jelinek. Defense counsel objected that the defense was unfairly surprised by the prosecution and moved to preclude such testimony as fatally prejudicial. The court denied the motion after defense counsel inaccurately conceded that he had not requested a bill of particulars with respect to the charge of endangering the welfare of a child. J.C., who was now ten years old, testified, as he had before the Grand Jury, that on several occasions Jelinek tickled him or touched him on his “private spots.” (Trial Tr. at 392.) He then testified about criminal acts that were not specifically charged in the indictment: Q Now, in June of 1990 when you were inside of the house and you say this happened, [J.C.], was there anybody else there? A Yes. Q Who else was there? A [J.N.] and Jason Jelinek. Q Now, [J.C.], in June of 1990, can you tell us what, if anything, you saw Roger Jelinek do to other people? A I saw him put [J.N. ’sj weenie in his mouth. Q Who was present at the time? A What does present mean? Q Who else was there? A Jason Jelinek. (Id. at 398-97 (emphasis added).) Jelinek was not charged in the indictment with putting the penis of J.N. in defendant’s mouth in June of 1990; rather, he was charged with performing a similar act in June or July of 1991. At the Grand Jury, J.C. said defendant put his mouth on J.N.’s penis, while at the trial he said defendant put J.N.’s penis in defendant’s mouth. As noted above, during the trial J.N. testified that defendant put his penis in J.N. ’s mouth, and flatly denied that the defendant had placed J.N.’s penis in defendant’s mouth. J.C. did testify that in June of 1991 Jelinek put his mouth over J.C.’s penis, an act that was charged in the indictment: Q [I]n June of 1991 can you tell us what, if anything, Roger Jelinek, the defendant, did to you? A Well, he still touched me on my private spots and he put my weenie in his mouth. Q Now, when you say he still touched your private spots, can you tell us how many times that happened in June of 1991, approximately? A Five times. Q And was that both of your private spots? A Yes. Q And where did that happen? A Either at his house or at the beach. Q And when you say he put your weenie in his mouth, where did that happen? A At his house. (Id. at 397-98.) J.C. was next queried about an incident in which Jelinek allegedly placed his penis to J.C.’s anus. J.C.’s testimony at the Grand Jury indicated the incident occurred at Jelinek’s home, the bill of particulars indicated the incident occurred at Jelinek’s home, and the jury was advised in the prosecution’s opening that the state would prove that the incident occurred at Jeli-nek’s home. Nonetheless, J.C. unequivocally denied at trial that such an incident occurred at Jelinek’s home: Q Now, [J.C.], I next want to ask you about July of 1991. Can you tell us what, if anything, the defendant did that time in July of 1991? A At his house or at the beach? Q Let’s start with at his house. A Nothing happened at his house, but at the beach things happened. Q What is it that would happen at the beach? A In July, 1991, when I went to the beach with him — .... with his son, Jason, Michael, Brett, [J.N.], and he was sitting in a chair. Q Who is “he”? A Roger Jelinek. And he told me to sit in his lap, and I sat in his lap, and he put a towel around us and he touched my private spots, and he put his weenie in my butt. Q Now, where were the other boys that you say went to the beach with you at that time? A In the water. Q Now, [J.C.], how many times since you’ve known Mr. Jelinek, Roger Jelinek, has he put his weenie on your butt? A Once. Q And what did you do after that happened? A I went home and I told my mom that my butt hurt. Q And what did she do? A She put Vaseline on it. Q Now, other than at the beach in July of 1991, at any time, other time, during that month, did Mr. Jelinek do anything to you? A No. (Id. at 398-400 (emphasis added).) It will be noted that the direct testimony of J.C. was not consistent with respect to whether defendant’s penis was placed “in” or “on” J.C.’s “butt.” Testimony of J.C. before the Grand Jury that a butt-penis incident occurred at defendant’s home was inconsistent with testimony at trial that it occurred at the beach. Finally, J.C. provided the only testimony in support of the charge that Jelinek put his mouth to J.N.’s penis, stating that he “saw [Jelinek] put [J.N.’s] weenie in his mouth” between June and July of 1991. (Id. at 400.) J.N. himself, as already noted, flatly denied at trial that this incident occurred. J.C. did not testify about the incident he described before the Grand Jury during which Jelinek allegedly rubbed his penis against J.C.’s leg at Tobay Beach. As pointed out below, although no evidence of this alleged crime was offered at trial, Jelinek was nonetheless convicted of it. d. Defense Examination of J.C. at Trial On cross-examination, defense counsel tried to establish that J.C. had been subjected to suggestive and unreasonable questioning by the state officials who first interviewed him. This was a strategy counsel deployed throughout the trial, presumably in anticipation of arguing at closing that the children’s testimony was largely the product of suggestion. As was the case with respect to his questioning of J.C., this examination strategy yielded very little of substance from any of the children that might be used in support of such an argument. Counsel did elicit from J.C. an acknowledgment that he never told his parents about any of these incidents. J.C. also stated, however, that he was interviewed by police detectives for less than an hour and that the detectives did not tell him they thought Jelinek had done anything wrong: Q Well, you’re outside with the two detectives and they told you that they are police detectives and you have seen their badges. What’s the next thing that they said? A They asked me if I knew Roger Jeli-nek. Q What did you say? A Yes. Q What’s the next thing they said? A They asked me if he did anything to me. Q Now, did they suggest to you the type of things that they thought he had done? A No. Q Did they tell you any type of things that they thought he might have done? A No. Q Now, did you want to help the police? A No. Q Pardon me? A No, I just told them my story. Q Now, you talked to them for two hours? A I didn’t talk to them for two hours. They talked with my whole family for about two hours. Q For how long did you talk to them? A 45 minutes, half an hour. (Id. at 403-04.) Defense counsel proceeded to cross-examine J.C. about the sodomy incident allegedly perpetrated at Tobay Beach — an accusation, as noted above, that at least with respect to location and to whether or not Jelinek’s penis was “in” or “on” J.C.’s butt — varied from what was charged in the indictment: Q Now, when you went to the beach did the defendant take you alone or were there other people there? A There were other people there. Q And you say something happened with the towel. Did you bring the towel? A No. Q You went to the beach without a towel? A I went to the beach with a towel, but it wasn’t my towel that he put around us. Q Did you go swimming at the beach when you say he put a towel around you? A Yes. Q Were you cold after you went swimming? A After I dried myself off I wasn’t cold. Q Let’s understand something. What the name of this beach? A Tobay. Q Were there life guards? A Yeah. Q Other people around? A Yeah. Q This is daytime? A Yes. Q Now, you said that Mr. Jelinek touched you in your private spots and touched his weenie to your butt. Is that what you said? A Yes. Q Was that outside? A Yes, but when that happened he had a towel around us so no one could see. Q But it was outside your butt? A Yes. Q Now, did you ask to leave? A No, after that I fell asleep. Q Was this in the morning or the afternoon? A The afternoon. Q You went home that night? A Yes. Q And you say that the defendant touched the outside of your butt with his weenie? A No, he touched my butthole. (Id. at 417-19 (emphasis added).) Unremarked by either side at trial was the testimony J.C. gave at his second Grand Jury appearance, in which he testified that Jelinek “put his weenie on my butt ” and that the incident had occurred at Jelinek’s home. (Sept. 27, 1991 Grand Jury Tr. at 21.) e. Jury Verdicts on Charges Relating to J.C. The jury convicted Jelinek on each of the eight counts charged in the indictment relating to J.C., including the count alleging Jelinek had rubbed his penis against J.C.’s leg. f. Disposition on Appeal of Charges Relating to J.C. The Appellate Division found that no evidence was presented at trial tending to prove that Jelinek rubbed his penis against J.C.’s leg and, accordingly, reversed Jeli-nek’s conviction for sexual abuse in the first degree with respect to that count. The court also dismissed three other counts of sexual abuse in the first degree, concluding that the indictment was defective because these counts were duplicitous. The dismissed counts related to the incidents in which Jelinek allegedly (1) touched J.C.’s penis in June 1991 in his home; (2) touched J.C.’s penis in June 1990 in his home; and (3) touched J.C.’s buttocks in June 1990 at his home. The remaining four convictions, including that for the sodomy incident that allegedly occurred at Tobay Beach, were affirmed. 3. Child C.H. a. Charges Related to C.H. Two counts in Jelinek’s indictment related to nine-year-old C.H., another of the boys whom Jelinek coached in Little League. Count Nine of the indictment was for sexual abuse in the first degree, in which Jelinek was accused of touching C.H.’s penis on or about and between March 10 and April 10 of 1991 outside of his home. Count Ten charged Jelinek with endangering the welfare of a child, C.H., by engaging in sexual acts upon C.H. on or about and between March and April of 1991. b. Grand Jury Testimony of C.H. C.H. was nine at the time of his Grand Jury appearance. He lived within two blocks of Jelinek’s home, was a friend of Jason Jelinek, and was on the Little League baseball team that Jelinek coached. His brief testimony concerned an incident that allegedly took place in front of the Jelinek home in April 1991: Q Can you tell us, please, what did [the defendant] do, if anything, in front of the house, what happened? A Well, my side of the door was locked so I asked him to open it, and he went to open it and he touched my stomach, then he rolled it down and touched my private spot. Q What did he touch your private spot with? A His hand. Q When you say your “private spot,” what spot are you talking about? A The penis. (Sept. 27, 1991 Grand Jury Tr. at 74-75.) c. State Examination of C.H. at Trial C.H. was eleven at the time of the trial, and testified substantially as he had before the Grand Jury, indicating that Jelinek touched his penis while he was in defendant’s car outside of Jelinek’s home. d. Defense Examination of C.H. at Trial On cross-examination, defense counsel attempted — with some success — to show that C.H.’s story might have been the product of suggestive police interrogation. C.H. acknowledged on cross that he did not discuss the alleged abuse with his parents until after speaking with police detectives, and described speaking for about an hour with the detectives who explained they were interviewing him because “other kids mentioned [his] name” in connection with their investigation of Jelinek. (Trial Tr. at 327.) The cross-examination included the following exchange: Q Did [the detectives] tell you that they knew [Jelinek] did bad things? A Yes. Q And did they tell you that they knew he had done bad things to you? A No. Q What did they say? A They asked me if he did anything to me. Q What were the words that they used? A I don’t know; I’m not sure. It was a long time ago. Q So they told you that, if I’m correct, that other kids had given — they showed you their badges, they told you that other kids had given your name to them, and they asked you if he had done anything? A Yes. Q And did they describe to you the types of things they thought he might have done? A No. Q What did you say to them when they asked you if they thought, if he had done anything? AI said, yes, he did. Q And what did they say? A They said, can you tell me what happened? (Tr. at 328-29.) Defense counsel was more successful in demonstrating that C.H. might have simply told the police detectives what they wanted to hear: Q Now, when the detectives showed you the badges were you afraid? A No. Q Do you like to please people? A Yeah. Q And did you want to please the detectives? A I guess, yes, I did, because — yes, I wanted to please the detectives. Q What were you going to say? AI was going to say what happened. Q Well, did the detectives tell you what they thought had happened? A No. Q Did the detectives tell you what the other children said had happened? A No. Q Where was Jason [Jelinek]? A It was a long time ago, I’m not totally sure. He was either in the car or outside of the car. Q Now, you say this happened a long time ago, and you’re not that sure of the date or the weather or other things. Would it be fair to say that your memory of the events is a little less than perfect? A Yes. (Id. at 338-89.) In addition, counsel briefly addressed the substance of C.H.’s testimony, seeking to show that C.H. could not even be certain that Jelinek touched him with his hand or with an umbrella. e. Jury Verdicts on Charges Relating to C.H. The jury convicted Jelinek on both counts of the indictment for which C.H. was the alleged victim. f. Disposition of Charges Related to C.H. on Appeal Both convictions were affirmed on appeal. 4. Child G.B. Unlike the other six alleged victims, G.B. was the only complaining witness to have initiated contact with the police to allege that he had been sexually abused by Jelinek. He was also the only child to be declared a “vulnerable child witness” and allowed to testify via closed-circuit, two-way television from another room in the courthouse — something that defense counsel strongly objected to as an infringement of Jelinek’s rights under the Confrontation Clause. a. Charges Related to G.B. Fourteen of the counts lodged against Jelinek in his indictment related to conduct of which G.B. was the alleged victim. Thirteen of the charges concerning G.B. were for sexual abuse in the first degree. Count Eighteen charged Jelinek with touching the penis of G.B. in his home on or about February of 1991. Count Nineteen charged him with touching the penis of G.B. on or about February 1991 at his home in a separate and distinct act. Count Twenty charged him with touching the penis of G.B. on or about February 1991 in another separate and distinct act. Count Twenty-One charged him with touching the buttocks of G.B. on or about February 1991 at his home. Count Twenty-Two charged him with touching the buttocks of G.B. on or about February 1991 at his home in a separate and distinct act. Count Twenty-Three charged him with touching the buttocks of G.B. on or about February 1991 at his home in another separate and distinct act. Count Twenty-Four charged him with touching the penis of G.B. on or about July 1991 at Tobay Beach. Count Twenty-Five charged him with touching the penis of G.B. on or about July 1991 at Tobay Beach in a separate and distinct act. Count Twenty-Six charged him with touching the penis of G.B. on or about July 1991 at his home. Count Twenty-Seven charged him with touching the buttocks of G.B. on or about July 1991 at Tobay Beach. Count Twenty-Eight charged him with touching the buttocks of G.B. on or about July 1991 at Tobay Beach in a separate and distinct act. Count Twenty-Nine charged him with touching the buttocks of G.B. on or about July 1991 at his home. Count Thirty charged him with putting his mouth on the buttocks of G.B. on or about July 1991 at his home. Count Thirty-One charged Jelinek with the misdemeanor of endangerment of a child, G.B., by, on or about and between June 1987 and July 1991, engaging in sexual acts at his home and at Tobay Beach in the presence of and upon the person of G.B. b. Grand Jury Testimony of G.B. G.B., ten years old at the time of his Grand Jury appearance in October 1991, contacted police to initiate a complaint against Jelinek. He was the catalyst for the subsequent investigation. Before the Grand Jury, he testified that although he presently lives with his mother in Buffalo, several years earlier they had been neighbors of the Jelineks on Long Island. G.B. was a friend of Jelinek’s son Jason. He visited the Jelinek home almost every day when he lived in the neighborhood. He described a very close relationship with the defendant, whom he apparently considered a surrogate father. G.B. explained before the Grand Jury that he had made several trips to Jelinek’s home since moving upstate. He testified that during one such trip in October of 1990, Jelinek “rub[bed] my penis and my butt” while his clothes were on and that he “sometimes ... put his hands under my clothes.” (Oct. 1, 1991 Grand Jury Tr. at 11.) At a subsequent Grand Jury appearance the next day, G.B. corrected himself and stated that this trip occurred in February rather than October. G.B. also testified that during another trip, in July of 1991, Jelinek touched him “on [his] penis and on [his] butt” while they were in the water at Tobay Beach, and that Jelinek did so “once to three times” on separate days. (Id. at 12.) He next described an incident that allegedly occurred on July 23, 1990, in which Jelinek accosted him as he got out of the shower in Jelinek’s home. As G.B. described it, I was coming out of the shower and he told me to give him a hug. And I didn’t want to. And he told me to. So I came over. He took my towel away and he tried touching me, and I wouldn’t let him. And he was — and he was kind of forcing my — I was covering myself with my hand. And he was forcing my hand away. And he was — and he held onto me. And, finally, I got away from him, took my towel, unlocked the door, by the way, it was locked, and I ran upstairs and got dressed. (Id. at 13.) G.B. further stated that Jeli-nek had given him a “tushee bite” — where “he places you down on the bed and bites your butt” — at the time of the incident. (Id. at 14.) c. “Vulnerable Child Witness” Hearing Prior to testifying at trial, G.B.’s mother was questioned at a hearing in order to allow the trial court to determine whether G.B. would be psychologically harmed if forced to testify in the courtroom. G.B.’s mother testified that following the alleged incidents of abuse by Jelinek, G.B. had become defiant with authority, especially all male figures. He has a hard time maintaining any friendships. He is very argumentative, he will only do something if it’s put to a point where, would you like to do it? The moment you tell him to do something, that it is a command or something that has to be done, he refuses to do it, no matter what the consequences are. He is not doing well in school; he is now failing school. He has made one suicide attempt, and three times where he indicated to a teacher, myself and his brother’s ex-girlfriend, how he wished to be dead but didn’t know a way to Mil himself that would not be painful. (Trial Tr. at 528-29.) Over defense counsel’s objections, the trial court found that, pursuant to New York law, G.B. was a vulnerable child witness and concluded that he should be allowed to testify via closed-circuit, two-way television: I make the following findings of fact:.... [G.B.] became very friendly with the defendant’s son, Michael, and through Michael got to know the defendant, essentially became a part of the defendant’s family.... The relationship between Jelinek and the defendant [sic ] was quite close. As a matter of fact, [G.B.] would refer to Jelinek as dad, and [G.B.] indicated that he felt that no one loved him as much as Roger Jelinek. It was his honest wish that his mother marry Mr. Jelinek so that they could all be one family.... He generally stayed, he did stay at defendant’s home and defendant paid for his travel from Buffalo to Seaford [on occasion]. He would generally stay for two to three weeks, occasionally just one week. During those periods of time defendant was responsible for his custody. [G.B.] stayed at his home throughout the period. And it was during these visits, in part, that the alleged criminal activities of defendant occurred. [Following an alleged incident of sexual abuse, G.B.’s mother] noticed certain changes in [G.B.’s] personality and described his emotions after his return to Buffalo following that incident. She indicated that she observed he was very defiant toward male authority, argumentative, unruly, began to fail in school; on one occasion, while staying with his father, attempted suicide, and on three other occasions had indicated that he wished that he was dead but was fearful because of the pain that might be involved. [G.B.] went into therapy shortly after his attempted suicide.... When his mother asked him to come down here and testify, he became very upset, didn’t want to, didn’t want to talk about it, said it was a very private business. He was extremely angry. He missed school, he wouldn’t do his homework, didn’t sleep well, took a lot of aspirin, he said to sleep. He was terrified, she said, of who might find out about this case. Other behavioral changes that she observed was that he fought a lot, wouldn’t bathe, was unkempt and withdrawn. The Court also refers to, and incorporates by reference in its findings of fact, ... a written statement of [G.B.]. He indicated to his mother in connection with his coming down here that he was afraid of the defendant’s family and the intimidation he may be facing. However, at the last minute his mother indicated he changed his mind and wished to come down and testify. The Court makes the following conclusions of law: The Court believes that it has been established by clear and convincing evidence that it is likely as a result of the extraordinary circumstances of this case, as stated, that [G.B.] will suffer severe emotional harm if required to testify at this criminal proceeding in the usual fashion and without the use of life [sic ] two-way closed circuit television, which I believe, if utilized, will help to diminish the likelihood and extent of such potential harm. That conclusion is based on the following summary: [G.B.] is quite young; he’s twelve years of age. Mr. Jelinek was in a position of authority, there was a close relationship between them. He called him dad. Furthermore, the relationship and the alleged criminal activity, particularly as set forth in count 31 of the Indictment alleging endangering the welfare of a child, extended over a long period of time, as alleged in the papers, June of '87 to July of '91. Accordingly, I find that [G.B.], under the circumstances, is a vulnerable witness, and I authorize the personnel that [are] present here to conduct the life [sic ] two-way closed television, and that the testimony of [G.B.] as a vulnerable witness be taken from the testimonial room outside of this courtroom, and that the two-way closed circuit pertain. It is my opinion, based upon what I’ve heard, and I make a specific finding, that if [G.B.] and defendant were in the same room during the testimony anticipated to be given by [G.B.], it would contribute to the likelihood that [G.B.] would suffer severe emotional harm. (Id. at 550-55.) d. State Examination of G.B. at Trial Pursuant to the trial court’s order, G.B. testified via closed circuit television. A videotape recording of the testimony was preserved for possible use on appeal and is part of the record in the present case. The videotape is a powerful illustration of the perils that await counsel considering a vigorous cross-examination of a highly intelligent child testifying about sexual abuse. In his testimony, G.B. first described the shower incident he had briefly testified to before the Grand Jury. As he described it at trial, We were coming home from Tobay Beach and I was taking a shower. I got out of the shower, and he told me — he was sitting on his back, and he told me to come and give him a hug. I didn’t want to, but I did any of it [sic ]. I just wanted a towel, he tried to pull the towel away, and he did. But I covered myself with my hands, and he was trying with excessive force to pull my hands away. And I broke away, and the door was locked. And I opened the door, I ran upstairs, I got dressed. Later on that day I called my mother and she just told me what to do. I stayed with the Jelineks a day or two longer, and my Uncle Robert, [who] is a police officer, he came in the park where [defendant] had a concession stand, they came and picked me up. (Id. at 563-64.) G.B. described other incidents as well, testifying that Jelinek “had a little game in which he could make sexual contact, he called it a tuschy bite. And he would place his mouth on my butt.” (Id. at 565.) He described sitting on Jelinek’s lap a number of times while watching television, during which Jelinek would give him a back rub that would “go lower and lower, and he would rub my penis and my butt.” (Id. at 565-66). He testified that at least several times when they were at the beach Jelinek would take him out into the water, where he “would hold me in his arms to keep me up, and he would rub me on my penis and my butt in the water.” (Id. at 566.) e. Defense Examination of G.B. at Trial As he had done when cross-examining other witnesses, defense counsel queried G.B. as to whether his testimony had somehow been coached or unduly influenced by the suggestive questioning of state investigators. G.B. stated that after filing his complaint he spoke with detectives for at least an hour and that he had spoken with a social worker before that. Hoping to demonstrate that G.B. had been c