Opinion
2015-03-27
The PEOPLE of the State of New York, Respondent, v. George SWAN, Defendant–Appellant.
Frank H. Hiscock Legal Aid Society, Syracuse (Philip Rothschild of Counsel), for Defendant–Appellant. William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of Counsel), for Respondent.
Frank H. Hiscock Legal Aid Society, Syracuse (Philip Rothschild of Counsel), for Defendant–Appellant. William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, CARNI, AND SCONIERS, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, attempted rape in the first degree (Penal Law §§ 110.00, 130.35[1] ). Defendant failed to preserve for our review his contention that he was deprived of a fair trial by misconduct during the prosecutor's opening statement, direct examination of the victim, and summation ( seeCPL 470.05[2]; see People v. Gates, 6 A.D.3d 1062, 1063, 775 N.Y.S.2d 621, lv. denied3 N.Y.3d 659, 782 N.Y.S.2d 701, 816 N.E.2d 574). In any event, we conclude that none of the alleged misconduct by the prosecutor was so egregious as to deprive defendant of a fair trial ( see People v. Figgins, 72 A.D.3d 1599, 1600, 899 N.Y.S.2d 702, lv. denied15 N.Y.3d 893, 912 N.Y.S.2d 581, 938 N.E.2d 1016).
We reject the further contention of defendant that he was denied effective assistance of counsel. “Inasmuch as defendant was not denied a fair trial by any alleged instances of prosecutorial misconduct, defense counsel's failure to object to those [instances] does not constitute ineffective assistance of counsel” (People v. Gaston, 100 A.D.3d 1463, 1465, 953 N.Y.S.2d 780). Defendant failed “to demonstrate the absence of strategic or other legitimate explanations for counsel's” alleged ineffectiveness in failing to make particular arguments or take particular actions (People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698), including the failure to challenge a prospective juror ( see People v. Stepney, 93 A.D.3d 1297, 1298, 940 N.Y.S.2d 752, lv. denied19 N.Y.3d 968, 950 N.Y.S.2d 120, 973 N.E.2d 218).
Although a prosecution witness testified in violation of County Court's ruling excluding a portion of defendant's statement at the crime scene, defendant withdrew his mistrial motion based on that testimony and made no further objection when the court issued curative instructions. “Under these circumstances, the curative instructions must be deemed to have corrected the error to the defendant's satisfaction” (People v. Heide, 84 N.Y.2d 943, 944, 620 N.Y.S.2d 814, 644 N.E.2d 1370; see People v. Henry, 9 A.D.3d 914, 915, 779 N.Y.S.2d 707, lv. denied3 N.Y.3d 675, 784 N.Y.S.2d 14, 817 N.E.2d 832). The court thereafter properly denied defendant's pro se motion for a mistrial, which was based upon the same testimony, made at the close of the People's case ( see People v. Ross, 221 A.D.2d 383, 384, 633 N.Y.S.2d 355, lv. denied87 N.Y.2d 925, 641 N.Y.S.2d 606, 664 N.E.2d 517).
The sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.