Opinion
963 KA 15-00768
11-19-2021
The PEOPLE of the State of New York, Respondent, v. Roy D. HARRIGER, Defendant-Appellant.
RICHARD L. SULLIVAN, BUFFALO, FOR DEFENDANT-APPELLANT. JOSEPH V. CARDONE, DISTRICT ATTORNEY, ALBION, FOR RESPONDENT.
RICHARD L. SULLIVAN, BUFFALO, FOR DEFENDANT-APPELLANT.
JOSEPH V. CARDONE, DISTRICT ATTORNEY, ALBION, FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, LINDLEY, CURRAN, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him following a jury trial of two counts of course of sexual conduct against a child in the first degree ( Penal Law § 130.75 [1] [a] ). Contrary to defendant's contention, he was not denied effective assistance of counsel when defense counsel elicited evidence of uncharged acts of sexual abuse and other prior bad acts. Defendant failed to "demonstrate the absence of strategic or other legitimate explanations for counsel's" actions ( People v. Nicholson , 26 N.Y.3d 813, 831, 28 N.Y.S.3d 663, 48 N.E.3d 944 [2016] ; see generally People v. Benevento , 91 N.Y.2d 708, 712-713, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998] ). Given the nature of this case, including the lack of any viable defense beyond attacking the credibility of the People's witnesses, we conclude that defense counsel's attempt to cast doubt on the allegations of the witnesses by making those allegations seem almost too incredible to be true "reflects a reasonable and legitimate strategy under the circumstances and evidence presented" ( Benevento , 91 N.Y.2d at 713, 674 N.Y.S.2d 629, 697 N.E.2d 584 ). Although defendant contends that there was no possible "upside" to the strategy pursued by defense counsel at trial, we note that the jury acquitted defendant on the count of the indictment relating to one of the three complainants. It cannot therefore be said that defense counsel's strategy was wholly unsuccessful. Viewing the evidence, the law and the circumstances of this case as a whole and as of the time of the representation, including the fact that defendant was acquitted of a charge relating to a third alleged victim, we conclude that defendant was afforded meaningful representation (see People v. Baldi , 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ).
Defendant further contends that the verdict with respect to count four of the indictment is against the weight of the evidence. We reject that contention. Viewing the evidence in light of the elements of that crime as charged to the jury (see People v. Danielson , 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we conclude that the verdict on that count is not against the weight of the evidence (see People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). Where, as here, "witness credibility is of paramount importance to the determination of guilt or innocence, the appellate court must give ‘[g]reat deference ... [to the] fact-finder's opportunity to view the witnesses, hear the testimony and observe demeanor’ " ( People v. Harris , 15 A.D.3d 966, 967, 788 N.Y.S.2d 745 [4th Dept. 2005], lv denied 4 N.Y.3d 831, 796 N.Y.S.2d 586, 829 N.E.2d 679 [2005], quoting Bleakley , 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ; see People v. Streeter , 118 A.D.3d 1287, 1288, 987 N.Y.S.2d 775 [4th Dept. 2014], lv denied 23 N.Y.3d 1068, 994 N.Y.S.2d 327, 18 N.E.3d 1148 [2014], reconsideration denied 24 N.Y.3d 1047, 998 N.Y.S.2d 317, 23 N.E.3d 160 [2014] ). We perceive no basis in the record for us to substitute our credibility determinations for those of the jury.
We have reviewed defendant's remaining contentions and conclude that none warrants reversal or modification of the judgment.