| People v Swan |
| 2015 NY Slip Op 02637 [126 AD3d 1527] |
| March 27, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vGeorge Swan, Appellant. |
Frank H. Hiscock Legal Aid Society, Syracuse (Philip Rothschild of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel),for respondent.
Appeal from a judgment of the Onondaga County Court (Anthony F. Aloi, J.),rendered December 14, 2011. The judgment convicted defendant, upon a jury verdict, ofattempted rape in the first degree, assault in the second degree and resisting arrest.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of, inter alia, attempted rape in the first degree (Penal Law§§ 110.00, 130.35 [1]). Defendant failed to preserve for our review hiscontention that he was deprived of a fair trial by misconduct during the prosecutor'sopening statement, direct examination of the victim, and summation (see CPL470.05 [2]; see People vGates, 6 AD3d 1062, 1063 [2004], lv denied 3 NY3d 659 [2004]). Inany event, we conclude that none of the alleged misconduct by the prosecutor was soegregious as to deprive defendant of a fair trial (see People v Figgins, 72 AD3d 1599, 1600 [2010], lvdenied 15 NY3d 893 [2010]).
We reject the further contention of defendant that he was denied effective assistanceof counsel. "Inasmuch as defendant was not denied a fair trial by any alleged instances ofprosecutorial misconduct, defense counsel's failure to object to those [instances] does notconstitute ineffective assistance of counsel" (People v Gaston, 100 AD3d 1463, 1465 [2012]).Defendant failed "to demonstrate the absence of strategic or other legitimate explanationsfor counsel's" alleged ineffectiveness in failing to make particular arguments or takeparticular actions (People v Rivera, 71 NY2d 705, 709 [1988]), including thefailure to challenge a prospective juror (see People v Stepney, 93 AD3d 1297, 1298 [2012], lvdenied 19 NY3d 968 [2012]).
Although a prosecution witness testified in violation of County Court's rulingexcluding a portion of defendant's statement at the crime scene, defendant withdrew hismistrial motion based on that testimony and made no further objection when the courtissued curative instructions. "Under these circumstances, the curative instructions mustbe deemed to have corrected the error to the defendant's satisfaction" (People vHeide, 84 NY2d 943, 944 [1994]; see People v Henry, 9 AD3d 914, 915 [2004], lvdenied 3 NY3d 675 [2004]). The court thereafter properly denied defendant's pro semotion for a mistrial, which was based upon the same testimony, made at the close of thePeople's case (see People v Ross, 221 AD2d 383, 384 [1995], lv denied87 NY2d 925 [1996]).
The sentence is not unduly harsh or severe. Present—Scudder, P.J., Centra,Peradotto, Carni and Sconiers, JJ.