| People v Ielfield |
| 2015 NY Slip Op 07131 [132 AD3d 1298] |
| October 2, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vBryon M. Ielfield, Appellant. |
John J. Raspante, Utica, for defendant-appellant.
Leanne K. Moser, District Attorney, Lowville, D.J. & J.A. Cirando, Esqs.,Syracuse (John A. Cirando of counsel), for respondent.
Appeal from a judgment of the Supreme Court, Lewis County (Charles C. Merrell,J.), rendered March 30, 2012. The judgment convicted defendant, upon a jury verdict, ofsexual abuse in the first degree and endangering the welfare of a child.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of sexual abuse in the first degree (Penal Law § 130.65 [3]), andendangering the welfare of a child (§ 260.10 [1]), arising from an incidentinvolving hand-to-penis contact with his eight-year-old daughter. Defendant firstcontends that reversal is required based on several instances of prosecutorial misconduct,including shifting the burden of proof, introducing evidence of uncharged crimes, andvouching for the credibility of the witnesses. Defendant objected to the prosecutor'sattempt to introduce evidence of uncharged crimes, and to the prosecutor's attempt todiscuss that evidence during summation. " 'Any prejudice to defendant that mighthave arisen from the mention of uncharged criminal activity was alleviated when[Supreme Court] sustained defendant's objection and gave prompt curative instructionsto the jury' " regarding both the question concerning such criminal activity andthe purported reference to it during summation (People v Reyes-Paredes, 13 AD3d 1094, 1095 [2004],lv denied 4 NY3d 802 [2005]; see People v Yontz, 116 AD3d 1242, 1244 [2014], lvdenied 23 NY3d 1026 [2014]; People v Garcia, 33 AD3d 1050, 1051 [2006], lvdenied 9 NY3d 844 [2007]). We note in any event that, "[f]ollowing the [court's]curative instructions, defense counsel neither objected further, nor [renewed his requestfor] a mistrial. Under these circumstances, the curative instructions must be deemed tohave corrected the error[s] to the defendant's satisfaction" (People v Heide, 84NY2d 943, 944 [1994]).
Contrary to defendant's contention, the prosecutor did not make comments onsummation that shifted the burden of proof. In any event, even assuming, arguendo, thatthe prosecutor did so, we conclude that the comment at issue was "not so. . . egregious as to deny defendant a fair trial" (People v Rogers, 103 AD3d1150, 1153-1154 [2013], lv denied 21 NY3d 946 [2013]). We also note that"the court clearly and unequivocally instructed the jury that the burden of proof on allissues remained with the prosecution" (People v Pepe, 259 AD2d 949, 950[1999], lv denied 93 NY2d 1024 [1999]; see People v Page, 105 AD3d 1380, 1382 [2013], lvdenied 23 NY3d 1023 [2014]).
Defendant failed to preserve for our review his contention that the prosecutorengaged in misconduct during summation by vouching for the credibility of thewitnesses. In any event, we conclude with respect to the majority of defendant'scontentions in this respect that " 'the prosecutor [did not] vouch for thecredibility of the People's witnesses. Faced with defense counsel's focused attack on theircredibility, the prosecutor was clearly entitled to respond by arguing that the witnesseshad, in fact, been credible . . . An argument by counsel that his [or her]witnesses have testified truthfully is not vouching for their credibility' " (People v Roman, 85 AD3d1630, 1632 [2011], lv denied 17 NY3d 821 [2011]; see People v McIver, 107AD3d 1591, 1592 [2013], lv [*2]denied 22NY3d 997 [2013]). With respect to the sole instance in which the prosecutor "expressedhis personal belief on matters which may influence the jury" (People v Paperno,54 NY2d 294, 300 [1981]), we conclude that reversal is not required because those"comments did not 'demonstrate a persistent egregious course of conduct that wasdeliberate and reprehensible' . . . [and did not] deprive the defendant of afair trial" (People v Barnes,33 AD3d 811, 812 [2006], lv denied 8 NY3d 843 [2007]).
Defendant failed to preserve for our review the remainder of his contentionsconcerning alleged prosecutorial misconduct during summations inasmuch as he failed toobject to the alleged additional instances of misconduct (see CPL 470.05 [2]; People v Stoutenger, 121AD3d 1496, 1498 [2014], lv denied 25 NY3d 1077 [2015]). In any event,we conclude that the allegedly improper comments were " 'a fair response todefense counsel's summation, and/or a fair comment on the evidence' " (People v Ross, 118 AD3d1413, 1417 [2014], lv denied 24 NY3d 964 [2014]; see People v Santiago, 101AD3d 1715, 1716 [2012], lv denied 21 NY3d 946 [2013]), and that" '[a]ny improprieties were not so pervasive or egregious as to deprive defendantof a fair trial' " (Peoplev Jackson, 108 AD3d 1079, 1080 [2013], lv denied 22 NY3d 997[2013]).
Contrary to defendant's further contention, viewing the evidence in light of theelements of the crimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), weconclude that the verdict is not against the weight of the evidence (see generallyPeople v Bleakley, 69 NY2d 490, 495 [1987]). The victim's testimony was not "soinconsistent or unbelievable as to render it incredible as a matter of law" (People v Black, 38 AD3d1283, 1285 [2007], lv denied 8 NY3d 982 [2007]). Any inconsistencies inthe victim's testimony or variances between her testimony and that of the other witnessesmerely presented issues of credibility for the jury to resolve (see People v Witherspoon, 66AD3d 1456, 1457 [2009], lv denied 13 NY3d 942 [2010]), and we see nobasis for disturbing the jury's credibility determinations in this case.
We reject defendant's further contention that he was deprived of effective assistanceof counsel by his attorney's failure to move to suppress a photograph depicting a sex act,which was found on a cell phone that was seized pursuant to a search warrant. "People v Turner (5 NY3d476 [2005]) . . . stands for the proposition that a single failing in anotherwise competent performance may, in a rare case, be so egregious and prejudicial asto deprive a defendant of his constitutional right to effective legal representation. . . To rise to that level, the omission must typically involve an issue that isso clear-cut and dispositive that no reasonable defense counsel would have failed toassert it, and it must be evident that the decision to forgo the contention could not havebeen grounded in a legitimate trial strategy" (People v Keschner, 25 NY3d 704, 723 [2015] [internalquotation marks omitted]). Here, defendant has failed to demonstrate that he had aclear-cut right to suppression of the evidence. Furthermore, we note that defense counselextensively and effectively used the photograph in attempting to impeach the credibilityof a witness, and thus defendant also failed to "demonstrate the absence of strategic orother legitimate explanations" for defense counsel's allegedly deficient performance(People v Rivera, 71 NY2d 705, 709 [1988]). The evidence, the law, and thecircumstances of this case, viewed in totality and as of the time of representation,establish that defense counsel provided meaningful representation (see generally People v Stultz, 2NY3d 277, 283-284 [2004], rearg denied 3 NY3d 702 [2004]; People vBaldi, 54 NY2d 137, 147 [1981]).
Finally, the sentence is not unduly harsh or severe. Present—Scudder, P.J.,Smith, Carni, Lindley and DeJoseph, JJ.