        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

387
KA 12-00384
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, CARNI, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

GEORGE SWAN, DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PHILIP ROTHSCHILD OF
COUNSEL), FOR DEFENDANT-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, of attempted rape in the first degree,
assault in the second degree and resisting arrest.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of, inter alia, attempted rape in the first degree
(Penal Law §§ 110.00, 130.35 [1]). Defendant failed to preserve for
our review his contention that he was deprived of a fair trial by
misconduct during the prosecutor’s opening statement, direct
examination of the victim, and summation (see CPL 470.05 [2]; see
People v Gates, 6 AD3d 1062, 1063, lv denied 3 NY3d 659). In any
event, we conclude that none of the alleged misconduct by the
prosecutor was so egregious as to deprive defendant of a fair trial
(see People v Figgins, 72 AD3d 1599, 1600, lv denied 15 NY3d 893).

     We reject the further contention of defendant that he was denied
effective assistance of counsel. “Inasmuch as defendant was not
denied a fair trial by any alleged instances of prosecutorial
misconduct, defense counsel’s failure to object to those [instances]
does not constitute ineffective assistance of counsel” (People v
Gaston, 100 AD3d 1463, 1465). Defendant failed “to demonstrate the
absence of strategic or other legitimate explanations for counsel’s”
alleged ineffectiveness in failing to make particular arguments or
take particular actions (People v Rivera, 71 NY2d 705, 709), including
the failure to challenge a prospective juror (see People v Stepney, 93
AD3d 1297, 1298, lv denied 19 NY3d 968).

     Although a prosecution witness testified in violation of County
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                                                            KA 12-00384

Court’s ruling excluding a portion of defendant’s statement at the
crime scene, defendant withdrew his mistrial motion based on that
testimony and made no further objection when the court issued curative
instructions. “Under these circumstances, the curative instructions
must be deemed to have corrected the error to the defendant’s
satisfaction” (People v Heide, 84 NY2d 943, 944; see People v Henry, 9
AD3d 914, 915, lv denied 3 NY3d 675). The court thereafter properly
denied defendant’s pro se motion for a mistrial, which was based upon
the same testimony, made at the close of the People’s case (see People
v Ross, 221 AD2d 383, 384, lv denied 87 NY2d 925).

     The sentence is not unduly harsh or severe.




Entered:   March 27, 2015                          Frances E. Cafarell
                                                   Clerk of the Court
