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

1036
KA 12-02194
PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                               MEMORANDUM AND ORDER

BRYON M. IELFIELD, DEFENDANT-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, of sexual abuse in the first
degree and endangering the welfare of a child.

     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 sexual abuse in the first degree (Penal Law §
130.65 [3]), and endangering the welfare of a child (§ 260.10 [1]),
arising from an incident involving hand-to-penis contact with his
eight-year-old daughter. Defendant first contends that reversal is
required based on several instances of prosecutorial misconduct,
including shifting the burden of proof, introducing evidence of
uncharged crimes, and vouching for the credibility of the witnesses.
Defendant objected to the prosecutor’s attempt to introduce evidence
of uncharged crimes, and to the prosecutor’s attempt to discuss that
evidence during summation. “ ‘Any prejudice to defendant that might
have arisen from the mention of uncharged criminal activity was
alleviated when [Supreme Court] sustained defendant’s objection and
gave prompt curative instructions to the jury’ ” regarding both the
question concerning such criminal activity and the purported reference
to it during summation (People v Reyes-Paredes, 13 AD3d 1094, 1095, lv
denied 4 NY3d 802; see People v Yontz, 116 AD3d 1242, 1244, lv denied
23 NY3d 1026; People v Garcia, 33 AD3d 1050, 1051, lv denied 9 NY3d
844). We note in any event that, “[f]ollowing the [court’s] curative
instructions, defense counsel neither objected further, nor [renewed
his request for] a mistrial. Under these circumstances, the curative
instructions must be deemed to have corrected the error[s] to the
defendant’s satisfaction” (People v Heide, 84 NY2d 943, 944).

     Contrary to defendant’s contention, the prosecutor did not make
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                                                         KA 12-02194

comments on summation that shifted the burden of proof. In any event,
even assuming, arguendo, that the 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 AD3d 1150, 1153-1154, lv denied 21
NY3d 946). We also note that “the court clearly and unequivocally
instructed the jury that the burden of proof on all issues remained
with the prosecution” (People v Pepe, 259 AD2d 949, 950, lv denied 93
NY2d 1024; see People v Page, 105 AD3d 1380, 1382, lv denied 23 NY3d
1023).

     Defendant failed to preserve for our review his contention that
the prosecutor engaged in misconduct during summation by vouching for
the credibility of the witnesses. In any event, we conclude with
respect to the majority of defendant’s contentions in this respect
that “ ‘the prosecutor [did not] vouch for the credibility of the
People’s witnesses. Faced with defense counsel’s focused attack on
their credibility, the prosecutor was clearly entitled to respond by
arguing that the witnesses had, 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 AD3d 1630, 1632, lv denied 17 NY3d 821; see People v McIver, 107
AD3d 1591, 1592, lv denied 22 NY3d 997). With respect to the sole
instance in which the prosecutor “expressed his personal belief on
matters which may influence the jury” (People v Paperno, 54 NY2d 294,
300), we conclude that reversal is not required because those
“comments did not ‘demonstrate a persistent egregious course of
conduct that was deliberate and reprehensible’ . . . [and did not]
deprive the defendant of a fair trial” (People v Barnes, 33 AD3d 811,
812, lv denied 8 NY3d 843).

     Defendant failed to preserve for our review the remainder of his
contentions concerning alleged prosecutorial misconduct during
summations inasmuch as he failed to object to the alleged additional
instances of misconduct (see CPL 470.05 [2]; People v Stoutenger, 121
AD3d 1496, 1498, lv denied 25 NY3d 1077). In any event, we conclude
that the allegedly improper comments were “ ‘a fair response to
defense counsel’s summation, and/or a fair comment on the evidence’ ”
(People v Ross, 118 AD3d 1413, 1417, lv denied 24 NY3d 964; see People
v Santiago, 101 AD3d 1715, 1716, lv denied 21 NY3d 946), and that
“ ‘[a]ny improprieties were not so pervasive or egregious as to
deprive defendant of a fair trial’ ” (People v Jackson, 108 AD3d 1079,
1080, lv denied 22 NY3d 997).

     Contrary to defendant’s further contention, viewing the evidence
in light of the elements of the crimes as charged to the jury (see
People v Danielson, 9 NY3d 342, 349), we conclude that the verdict is
not against the weight of the evidence (see generally People v
Bleakley, 69 NY2d 490, 495). The victim’s testimony was not “so
inconsistent or unbelievable as to render it incredible as a matter of
law” (People v Black, 38 AD3d 1283, 1285, lv denied 8 NY3d 982). Any
inconsistencies in the victim’s testimony or variances between her
testimony and that of the other witnesses merely presented issues of
credibility for the jury to resolve (see People v Witherspoon, 66 AD3d
                                 -3-                             1036
                                                            KA 12-02194

1456, 1457, lv denied 13 NY3d 942), and we see no basis for disturbing
the jury’s credibility determinations in this case.

     We reject defendant’s further contention that he was deprived of
effective assistance of 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 NY3d 476 [2005]) . . . stands for the proposition that a single
failing in an otherwise competent performance may, in a rare case, be
so egregious and prejudicial as to deprive a defendant of his
constitutional right to effective legal representation . . . To rise
to that level, the omission must typically involve an issue that is so
clear-cut and dispositive that no reasonable defense counsel would
have failed to assert it, and it must be evident that the decision to
forgo the contention could not have been grounded in a legitimate
trial strategy” (People v Keschner, 25 NY3d 704, 723 [internal
quotation marks omitted]). Here, defendant has failed to demonstrate
that he had a clear-cut right to suppression of the evidence.
Furthermore, we note that defense counsel extensively and effectively
used the photograph in attempting to impeach the credibility of a
witness, and thus defendant also failed to “demonstrate the absence of
strategic or other legitimate explanations” for defense counsel’s
allegedly deficient performance (People v Rivera, 71 NY2d 705, 709).
The evidence, the law, and the circumstances 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, 2 NY3d 277, 283-284, rearg denied 3 NY3d 702; People v Baldi,
54 NY2d 137, 147).

     Finally, the sentence is not unduly harsh or severe.




Entered:   October 2, 2015                      Frances E. Cafarell
                                                Clerk of the Court
