| People v Welch |
| 2016 NY Slip Op 01516 [137 AD3d 1313] |
| March 3, 2016 |
| Appellate Division, Third Department |
[*1](March 3, 2016)
| The People of the State of New York, Respondent, v Tyrel Lee Welch, Appellant. |
Margaret McCarthy, Ithaca, for appellant.
Weeden A. Wetmore, District Attorney, Elmira, for respondent.
McCarthy, J.P. Appeal from a judgment of the County Court of Chemung County(Hayden, J.), rendered January 4, 2013, upon a verdict convicting defendant of thecrimes of sexual abuse in the first degree and strangulation in the second degree.
Defendant was charged in a two-count indictment with sexual abuse in the firstdegree and strangulation in the second degree based on allegations that he grabbed thevictim and choked her to the point of unconsciousness while placing his hand inside ofher underwear and touching her. Following a jury trial, defendant was convicted ascharged and sentenced to an aggregate prison term of seven years, followed by 10 yearsof postrelease supervision. Defendant now appeals, and his sole argument is that he wasdeprived of the effective assistance of counsel. We affirm.
In order to prevail on a claim of ineffective assistance of counsel, it is incumbentupon a defendant to establish that alleged errors by counsel demonstrate the absence of alegitimate strategy or explanation (see People v Benevento, 91 NY2d 708, 712[1998]). Once a defendant has established that counsel's actions fell outside of theselegitimate bounds, he or she must then establish that such deficiencies either causedprejudice (see Strickland v Washington, 466 US 668, 694 [1984]) or, moregenerally, deprived him or her of meaningful representation (see People v Oathout, 21NY3d 127, 128 [2013]). A defendant cannot depend on either "the clarity ofhindsight" (People v Benevento, 91 NY2d at 712) or on speculation as to mattersoutside of the record (see Peoplev Maracle, 19 NY3d 925, 929 [2012]), and the defendant cannot meet his or herburden by merely pointing out that counsel employed losing tactics (see People v Stultz, 2 NY3d277, 283 [2004]).
[*2] Certain ofdefendant's proposed courses of action for trial counsel would, contrary to his assertions,have been futile. Law enforcement stopped a truck—driven bydefendant—that was without a visible rear license plate and that matched thedescription of the one alleged to be driven by the perpetrator of the victim's assault; thisinformation was known by the relevant officer due to a "be on-the-lookout" alert. Assuch, a suppression motion specifically alleging that there was a lack of probable causeto initiate the traffic stop of defendant's vehicle would have been without merit (see People v Rose, 72 AD3d1341, 1343-1344 [2010], lv dismissed 16 NY3d 745 [2011]). Likewise, thefact that defendant was sitting in a police vehicle during that brief traffic stop did notrender his consent to give a tissue sample for DNA analysis involuntary, and a motionarguing that point would have been unavailing (see People v Dail, 69 AD3d 873, 874 [2010], lvdenied 14 NY3d 839 [2010]). Given these conclusions, defendant's relatedcontention that the fruit of the aforementioned searches and seizures could have beensuppressed are also without merit.
Many of defendant's allegations regarding counsel's deficiencies revolve aroundcounsel's decision not to vigorously challenge the People's evidence regarding DNA,which, at trial, generally established to a high degree of certainty that defendant had lefthis genetic material on the victim's clothing and body. Our review, however, reveals thatcounsel's available reasonable trial strategies were limited by defendant's choice to takethe stand and testify that he had grappled with the victim. Accordingly, given thatdefendant acknowledged that physical contact occurred, he has not shown that it was anunreasonable strategy to forgo challenging DNA evidence that was highly probative inestablishing that defendant came in contact with the victim.[FN*] Defendant's contentions that counselshould have called defendant's wife to testify, that counsel's performance should havebeen better at the suppression hearing, during summation and at sentencing and that thejury charges that counsel preferred were poorly chosen are also contentions that fail torise above hindsight second-guessing of counsel's legitimate strategic choices.
Additional alleged errors—counsel's failure to object to (1) certain bolsteringand hearsay, (2) testimony regarding chokeholds that was advanced as expert evidenceand (3) the People's suggestion that jurors conduct chokehold experiments duringdeliberations—are also unpersuasive. There is no reasonable probability that, hadcounsel made such objections, the result of the trial would have been different. Further,counsel executed a strategy consistent with defendant's testimony and primarily focusedon persuading the jury that reasonable doubt existed with regard to the requisite intent forthe charged crimes. More generally, counsel made appropriate pretrial challenges to thePeople's evidence, lodged meaningful objections during trial and cross-examinedwitnesses in a manner consistent with the aforementioned strategy. Accordingly, basedon our review of the record and viewing counsel's representation as a whole, weconclude that defendant received the effective assistance of counsel (see People vBenevento, [*3]91 NY2d at 714-715; People v Hook, 80 AD3d881, 884 [2011], lv denied 17 NY3d 806 [2011]). To the extent thatdefendant's remaining contentions regarding alleged errors by counsel have not beenexplicitly addressed herein, they have been considered and are also found to be withoutmerit.
Egan Jr., Lynch and Devine, JJ., concur. Ordered that the judgment is affirmed.
Footnote *:More specifically,defendant testified that his altercation with the victim—who was 17 yearsold—ensued after she misinterpreted his innocent purpose—which was toacquire directions—in reaching out and touching her while she jogged, alone,through a cemetery. The victim's testimony created a different portrait of defendant'sintended purpose. She explained that defendant followed her, placed her in a chokeholdand then stuck his hand inside of her underwear and touched her vagina. She furtherdescribed that she was unable to say whether defendant then assaulted her to any greaterextent because defendant had choked her to the point of unconsciousness.