| People v Wragg |
| 2014 NY Slip Op 02156 [115 AD3d 1281] |
| March 28, 2014 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v WillieL. Wragg, Appellant. |
—[*1] Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Alex R. Renzi, J.), renderedFebruary 25, 2009. The judgment convicted defendant, upon a jury verdict, of sexualabuse in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of sexual abuse in the first degree (Penal Law § 130.65 [3]). Contrary todefendant's contention, we conclude that, viewing the evidence in light of the elements ofthe crime as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), theverdict is not against the weight of the evidence (see generally People v Bleakley,69 NY2d 490, 495 [1987]). Defendant's contention is based primarily upon his challengeto the credibility of the victim, and there is no basis in the record before us to disturb thejury's credibility determinations (see People v Johnson, 94 AD3d 1563, 1564 [2012], lvdenied 19 NY3d 962 [2012]; People v Ellison, 302 AD2d 955, 955 [2003],lv denied 99 NY2d 654 [2003]).
Defendant further contends that he was denied effective assistance of counselbecause, inter alia, defense counsel failed to object to an investigator's testimony thatconstituted "inferential bolstering" of the victim's pretrial identification of defendant andbecause defense counsel asked questions during jury selection concerning the victim'spretrial identification. We reject that contention. With respect to the alleged inferentialbolstering, we conclude that the investigator's passing reference to the victim's pre-arrestidentification of "the individual" did not constitute improper bolstering inasmuch as itwas "offered for the relevant, nonhearsay purpose of explaining the investigative processand completing the narrative of events leading to the defendant's arrest" several days later(People v Rosario, 100AD3d 660, 661 [2012], lv denied 20 NY3d 1065 [2013]; see People v Perry, 62 AD3d1260, 1261 [2009], lv denied 12 NY3d 919 [2009]; People v Mendoza, 35 AD3d507, 507 [2006], lv denied 8 NY3d 987 [2007]). The failure to make anobjection that has "little or no chance of success" does not constitute ineffectiveassistance of counsel (People vStultz, 2 NY3d 277, 287 [2004], rearg denied 3 NY3d 702 [2004]; see People v Dashnaw, 37AD3d 860, 863 [2007], lv denied 8 NY3d 945 [2007]). In any event, evenassuming, arguendo, that the testimony constituted inferential bolstering, we note thatdefense 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 AD3d1516, 1517 [2013], lv denied 21 NY3d 1047 [2013]; see People v [*2]Bethune, 80 AD3d 1075, 1076-1077 [2011], lvdenied 17 NY3d 792 [2011]).
With respect to defense counsel's reference during jury selection to the victim's prioridentification of defendant, we conclude that defendant failed to " 'demonstrate theabsence of strategic or other legitimate explanations' for counsel's allegedly deficientconduct" (People v Caban,5 NY3d 143, 152 [2005]; see People v Benevento, 91 NY2d 708, 712[1998]). Identification was the central issue at trial, and defense counsel's primarystrategy was to suggest that the victim had misidentified defendant as the perpetrator.The specific question during jury selection to which defendant objects was designed toenable defense counsel to determine whether the particular prospective juror believedthat the victim's identification could be considered reliable when it was notcontemporaneous with the incident and, thus, the question was consistent with defensecounsel's strategy of attempting to discredit the reliability of the victim's identification.Viewing defense counsel's representation as a whole, we conclude that defendantreceived effective assistance of counsel (see generally People v Baldi, 54 NY2d137, 147 [1981]).
Defendant further contends that he was denied a fair trial based upon the cumulativeeffect of prosecutorial misconduct. Defendant failed to preserve his contention for ourreview with respect to many of the instances of alleged prosecutorial misconduct (see People v Scission, 60AD3d 1391, 1392 [2009], lv denied 12 NY3d 859 [2009],reconsideration denied 13 NY3d 749 [2009]), and we conclude in any event that"[a]ny 'improprieties were not so pervasive or egregious as to deprive defendant of a fairtrial' " (People v Johnson, 303 AD2d 967, 968 [2003], lv denied 100NY2d 583 [2003]).
We reject defendant's contention that the photo array was unduly suggestive and thusthat County Court erred in refusing to suppress the identification evidence. The Peoplemet their initial burden of establishing the reasonableness of the police conduct withrespect to the photo array, and defendant failed to meet his ultimate burden of provingthat the identification procedure was unduly suggestive (see generally People vChipp, 75 NY2d 327, 335 [1990], cert denied 498 US 833 [1990]).
Finally, there is no merit to defendant's further contention that he was improperlysentenced as a second child sexual assault felony offender (see generally People vArmbruster, 32 AD3d 1348, 1349 [2006]). Present—Smith, J.P.,Peradotto, Lindley, Valentino and Whalen, JJ.