                           State of New York
                    Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered: October 27, 2016                    106639
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                      MEMORANDUM AND ORDER

PEDRO A. UMANA,
                    Appellant.
________________________________


Calendar Date:    September 14, 2016

Before:    McCarthy, J.P., Lynch, Rose, Devine and Mulvey, JJ.

                              __________


     Patrick A. Perfetti, Cortland, for appellant.

      Weeden A. Wetmore, District Attorney, Elmira (John R.
Thweatt of counsel), for respondent.

                              __________


Rose, J.

      Appeal from a judgment of the County Court of Chemung
County (Hayden, J.), rendered June 7, 2013, upon a verdict
convicting defendant of the crimes of criminal sexual act in the
third degree, sexual abuse in the third degree (three counts) and
course of sexual conduct against a child in the second degree.

      Defendant was charged by indictment with criminal sexual
act in the third degree, sexual abuse in the third degree (three
counts) and course of sexual conduct against a child in the
second degree arising from allegations that he had subjected one
underage victim to sexual contact over a prolonged period of time
and another underage victim to sexual contact on two occasions.
Following a jury trial, defendant was convicted as charged. He
now appeals.
                              -2-                106639

      Defendant contends that various errors made by his trial
counsel, when viewed together, establish that he was deprived of
meaningful representation. We disagree. The evidence, the law
and the circumstances of this case, when viewed in totality and
as of the time of the representation, reveal that counsel
provided meaningful representation (see People v Gross, 26 NY3d
689, 693 [2016]; People v Camlin, 133 AD3d 909, 911 [2015], lv
denied 26 NY3d 1108 [2016]). In reaching this conclusion, we are
mindful that "[a] defendant is not entitled to a perfect trial,
and must demonstrate the absence of strategic or other legitimate
explanations for counsel's alleged deficiencies" (People v Jones,
101 AD3d 1241, 1242 [2012], lv denied 21 NY3d 944 [2013]; see
People v Nicholson, 26 NY3d 813, 831 [2016]).

      Our review of the record confirms that counsel's decision
to waive a Huntley hearing was legitimately based upon his early
receipt of Rosario material and the consistency of defendant's
statement to the police, and coincided with the defense pursued
at trial (see People v Thiel, 134 AD3d 1237, 1240 [2015], lv
denied 27 NY3d 1156 [2016]; People v Colburn, 123 AD3d 1292, 1297
[2014], lv denied 25 NY3d 950 [2015]). In addition, counsel
actively engaged in jury voir dire, and defendant has failed to
show the absence of a legitimate explanation for counsel's
decision to keep a prospective juror whose family member had been
prosecuted previously by the District Attorney's office
(see People v Slack, 137 AD3d 1568, 1570 [2016], lvs denied 27
NY3d 1139 [2016]). Defendant also claims that his counsel failed
to exercise peremptory challenges to remove two other prospective
jurors; however, our review of the record reveals that these two
jurors were not ultimately seated on the jury.

      Next, defendant has not shown that counsel's failure to
object to the People's use of certain leading questions on direct
examination of these young victims constitutes ineffective
assistance (see e.g. People v Izzo, 104 AD3d 964, 967 [2013], lv
denied 21 NY3d 1005 [2013]), and there is no merit to defendant's
assertion that the People used leading questions on direct
examination of his wife. Further, counsel's failure to object to
certain remarks made by the prosecutor during summation did not
deprive defendant of meaningful representation, as the vast
majority of these remarks were proper (see People v Rodriguez,
                              -3-                  106639

135 AD3d 1181, 1186 [2016], lv denied 28 NY3d 936 [2016]; People
v Stanford, 130 AD3d 1306, 1309 [2015], lv denied 26 NY3d 1043
[2015]). Rather, the record reflects that counsel presented a
clear trial strategy, made appropriate opening and closing
statements, effectively cross-examined witnesses and, thus,
provided defendant with meaningful representation (see People v
Ressy, 141 AD3d 839, 843 [2016]; People v Adams, 135 AD3d 1154,
1158 [2016], lv denied 27 NY3d 990 [2016]).

      Finally, defendant's challenges to certain jury
instructions are not preserved for our review (see CPL 470.05
[2]; People v Smith, 140 AD3d 1396, 1398 [2016], lv denied 28
NY3d 936 [2016]). In any event, were we to review them, we would
find them to be meritless.

     McCarthy, J.P., Lynch, Devine and Mulvey, JJ., concur.



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
