                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: March 3, 2016                     106004
________________________________

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

TYREL LEE WELCH,
                    Appellant.
________________________________


Calendar Date:   January 11, 2016

Before:   McCarthy, J.P., Egan Jr., Lynch and Devine, JJ.

                             __________


     Margaret McCarthy, Ithaca, for appellant.

      Weeden A. Wetmore, District Attorney, Elmira, for
respondent.

                             __________


McCarthy, J.P.

      Appeal from a judgment of the County Court of Chemung
County (Hayden, J.), rendered January 4, 2013, upon a verdict
convicting defendant of the crimes of sexual abuse in the first
degree and strangulation in the second degree.

      Defendant was charged in a two-count indictment with sexual
abuse in the first degree and strangulation in the second degree
based on allegations that he grabbed the victim and choked her to
the point of unconsciousness while placing his hand inside of her
underwear and touching her. Following a jury trial, defendant
was convicted as charged and sentenced to an aggregate prison
term of seven years, followed by 10 years of postrelease
supervision. Defendant now appeals, and his sole argument is
that he was deprived of the effective assistance of counsel. We
affirm.
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      In order to prevail on a claim of ineffective assistance of
counsel, it is incumbent upon a defendant to establish that
alleged errors by counsel demonstrate the absence of a legitimate
strategy or explanation (see People v Benevento, 91 NY2d 708, 712
[1998]). Once a defendant has established that counsel's actions
fell outside of these legitimate bounds, he or she must then
establish that such deficiencies either caused prejudice (see
Strickland v Washington 466 US 668, 694 [1984]) or, more
generally, deprived him or her of meaningful representation (see
People v Oathout, 21 NY3d 127, 128 [2013]). A defendant cannot
depend on either "the clarity of hindsight" (People v Benevento,
91 NY2d at 712) or on speculation as to matters outside of the
record (see People v Maracle, 19 NY3d 925, 929 [2012]), and the
defendant cannot meet his or her burden by merely pointing out
that counsel employed losing tactics (see People v Stultz, 2 NY3d
277, 283 [2004]).

      Certain of defendant's proposed courses of action for trial
counsel would, contrary to his assertions, have been futile. Law
enforcement stopped a truck – driven by defendant – that was
without a visible rear license plate and that matched the
description of the one alleged to be driven by the perpetrator of
the victim's assault; this information was known by the relevant
officer due to a "be on-the-lookout" alert. As such, a
suppression motion specifically alleging that there was a lack of
probable cause to initiate the traffic stop of defendant's
vehicle would have been without merit (see People v Rose, 72 AD3d
1341, 1343-1344 [2010], lv dismissed 16 NY3d 745 [2011]).
Likewise, the fact that defendant was sitting in a police vehicle
during that brief traffic stop did not render his consent to give
a tissue sample for DNA analysis involuntary, and a motion
arguing that point would have been unavailing (see People v Dail,
69 AD3d 873, 874 [2010], lvs denied 14 NY3d 839, 845 [2010]).
Given these conclusions, defendant's related contention that the
fruit of the aforementioned searches and seizures could have been
suppressed are also without merit.

      Many of defendant's allegations regarding counsel's
deficiencies revolve around counsel's decision not to vigorously
challenge the People's evidence regarding DNA, which, at trial,
generally established to a high degree of certainty that
                              -3-                106004

defendant had left his genetic material on the victim's clothing
and body. Our review, however, reveals that counsel's available
reasonable trial strategies were limited by defendant's choice to
take the stand and testify that he had grappled with the victim.
Accordingly, given that defendant acknowledged that physical
contact occurred, he has not shown that it was an unreasonable
strategy to forgo challenging DNA evidence that was highly
probative in establishing that defendant came in contact with the
victim.1 Defendant's contentions that counsel should have called
defendant's wife to testify, that counsel's performance should
have been better at the suppression hearing, during summation and
at sentencing and that the jury charges that counsel preferred
were poorly chosen are also contentions that fail to rise above
hindsight second-guessing of counsel's legitimate strategic
choices.

      Additional alleged errors – counsel's failure to object to
(1) certain bolstering and hearsay, (2) testimony regarding
chokeholds that was advanced as expert evidence and (3) the
People's suggestion that jurors conduct chokehold experiments
during deliberations – are also unpersuasive. There is no
reasonable probability that, had counsel made such objections,
the result of the trial would have been different. Further,
counsel executed a strategy consistent with defendant's testimony
and primarily focused on persuading the jury that reasonable
doubt existed with regard to the requisite intent for the charged
crimes. More generally, counsel made appropriate pretrial
challenges to the People's evidence, lodged meaningful objections
during trial and cross-examined witnesses in a manner consistent


    1
        More specifically, defendant testified that his
altercation with the victim – who was 17 years old – ensued after
she misinterpreted his innocent purpose – which was to acquire
directions – in reaching out and touching her while she jogged,
alone, through a cemetery. The victim's testimony created a
different portrait of defendant's intended purpose. She
explained that defendant followed her, placed her in a chokehold
and then stuck his hand inside of her underwear and touched her
vagina. She further described that she was unable to say whether
defendant then assaulted her to any greater extent because
defendant had choked her to the point of unconsciousness.
                              -4-                  106004

with the aforementioned strategy. Accordingly, based on our
review of the record and viewing counsel's representation as a
whole, we conclude that defendant received the effective
assistance of counsel (see People v Benevento, 91 NY2d at 714-
715; People v Hook, 80 AD3d 881, 884 [2011], lv denied 17 NY3d
806 [2011]). To the extent that defendant's remaining
contentions regarding alleged errors by counsel have not been
explicitly addressed herein, they have been considered and are
also found to be without merit.

     Egan Jr., Lynch and Devine, JJ., concur.



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
