Summary
In People v. Wragg, 115 A.D.3d 1281, 982 N.Y.S.2d 654 (4th Dept.2014), lv. granted 23 N.Y.3d 1070, 994 N.Y.S.2d 329, 18 N.E.3d 1150 (2014), the Fourth Department affirmed the defendant's sentence as a second child sexual assault offender after he was convicted at trial, citing Armbruster without elaboration.
Summary of this case from People v. LigginsOpinion
2014-03-28
The PEOPLE of the State of New York, Respondent, v. Willie L. WRAGG, Defendant–Appellant.
Shirley A. Gorman, Brockport, for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of Counsel), for Respondent.
Shirley A. Gorman, Brockport, for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of Counsel), for Respondent.
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, and WHALEN, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon a jury verdict of sexual abuse in the first degree (Penal Law § 130.65[3] ). Contrary to defendant's contention, we conclude that, viewing the evidence in light of the elements of the 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), the verdict is not against the weight of the evidence ( see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Defendant's contention is based primarily upon his challenge to the credibility of the victim, and there is no basis in the record before us to disturb the jury's credibility determinations ( see People v. Johnson, 94 A.D.3d 1563, 1564, 942 N.Y.S.2d 753,lv. denied19 N.Y.3d 962, 950 N.Y.S.2d 114, 973 N.E.2d 212;People v. Ellison, 302 A.D.2d 955, 955, 753 N.Y.S.2d 922,lv. denied99 N.Y.2d 654, 760 N.Y.S.2d 118, 790 N.E.2d 292).
Defendant further contends that he was denied effective assistance of counsel because, inter alia, defense counsel failed to object to an investigator's testimony that constituted “inferential bolstering” of the victim's pretrial identification of defendant and because defense counsel asked questions during jury selection concerning the victim's pretrial identification. We reject that contention. With respect to the alleged inferential bolstering, we conclude that the investigator's passing reference to the victim's pre-arrest identification of “the individual” did not constitute improper bolstering inasmuch as it was “offered for the relevant, nonhearsay purpose of explaining the investigative process and completing the narrative of events leading to the defendant's arrest” several days later ( People v. Rosario, 100 A.D.3d 660, 661, 953 N.Y.S.2d 299,lv. denied20 N.Y.3d 1065, 962 N.Y.S.2d 615, 985 N.E.2d 925;see People v. Perry, 62 A.D.3d 1260, 1261, 877 N.Y.S.2d 726,lv. denied12 N.Y.3d 919, 884 N.Y.S.2d 700, 912 N.E.2d 1081;People v. Mendoza, 35 A.D.3d 507, 507, 826 N.Y.S.2d 146,lv. denied8 N.Y.3d 987, 838 N.Y.S.2d 491, 869 N.E.2d 667). The failure to make an objection that has “little or no chance of success” does not constitute ineffective assistance of counsel ( People v. Stultz, 2 N.Y.3d 277, 287, 778 N.Y.S.2d 431, 810 N.E.2d 883,rearg. denied3 N.Y.3d 702, 785 N.Y.S.2d 29, 818 N.E.2d 671;see People v. Dashnaw, 37 A.D.3d 860, 863, 828 N.Y.S.2d 697,lv. denied8 N.Y.3d 945, 836 N.Y.S.2d 555, 868 N.E.2d 238). In any event, even assuming, arguendo, that the testimony constituted inferential bolstering, we note that defense counsel “may have had a strategic reason for failing to [object to such testimony] inasmuch as he may not have wished to draw further attention to [such testimony]” ( People v. Williams, 107 A.D.3d 1516, 1517, 966 N.Y.S.2d 784,lv. denied21 N.Y.3d 1047, 972 N.Y.S.2d 544, 995 N.E.2d 860;see People v. Bethune, 80 A.D.3d 1075, 1076–1077, 915 N.Y.S.2d 419,lv. denied17 N.Y.3d 792, 929 N.Y.S.2d 100, 952 N.E.2d 1095).
With respect to defense counsel's reference during jury selection to the victim's prior identification of defendant, we conclude that defendant failed to “ ‘demonstrate the absence of strategic or other legitimate explanations' for counsel's allegedly deficient conduct” ( People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213;see People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584). Identification was the central issue at trial, and defense counsel's primary strategy was to suggest that the victim had misidentified defendant as the perpetrator. The specific question during jury selection to which defendant objects was designed to enable defense counsel to determine whether the particular prospective juror believed that the victim's identification could be considered reliable when it was not contemporaneous with the incident and, thus, the question was consistent with defense counsel's strategy of attempting to discredit the reliability of the victim's identification. Viewing defense counsel's representation as a whole, we conclude that defendant received effective assistance of counsel ( see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).
Defendant further contends that he was denied a fair trial based upon the cumulative effect of prosecutorial misconduct. Defendant failed to preserve his contention for our review with respect to many of the instances of alleged prosecutorial misconduct ( see People v. Scission, 60 A.D.3d 1391, 1392, 875 N.Y.S.2d 384,lv. denied12 N.Y.3d 859, 881 N.Y.S.2d 671, 909 N.E.2d 594,reconsideration denied13 N.Y.3d 749, 886 N.Y.S.2d 103, 914 N.E.2d 1021), and we conclude in any event that “[a]ny ‘improprieties were not so pervasive or egregious as to deprive defendant of a fair trial’ ” ( People v. Johnson, 303 A.D.2d 967, 968, 759 N.Y.S.2d 260,lv. denied100 N.Y.2d 583, 764 N.Y.S.2d 393, 796 N.E.2d 485).
We reject defendant's contention that the photo array was unduly suggestive and thus that County Court erred in refusing to suppress the identification evidence. The People met their initial burden of establishing the reasonableness of the police conduct with respect to the photo array, and defendant failed to meet his ultimate burden of proving that the identification procedure was unduly suggestive ( see generally People v. Chipp, 75 N.Y.2d 327, 335, 553 N.Y.S.2d 72, 552 N.E.2d 608,cert. denied498 U.S. 833, 111 S.Ct. 99, 112 L.Ed.2d 70).
Finally, there is no merit to defendant's further contention that he was improperly sentenced as a second child sexual assault felony offender ( see generally People v. Armbruster, 32 A.D.3d 1348, 1349, 823 N.Y.S.2d 322).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.