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

97
KA 09-01189
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

WILLIE L. WRAGG, DEFENDANT-APPELLANT.


SHIRLEY A. GORMAN, BROCKPORT, FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Alex R. Renzi,
J.), rendered February 25, 2009. The judgment convicted defendant,
upon a jury verdict, of sexual abuse in the first degree.

     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]). Contrary to defendant’s contention, we conclude that,
viewing the evidence in light of the elements of the crime as charged
to the jury (see People v Danielson, 9 NY3d 342, 349), the verdict is
not against the weight of the evidence (see generally People v
Bleakley, 69 NY2d 490, 495). Defendant’s contention is based
primarily upon his challenge to the credibility of the victim, and
there is no basis in the record before us to disturb the jury’s
credibility determinations (see People v Johnson, 94 AD3d 1563, 1564,
lv denied 19 NY3d 962; People v Ellison, 302 AD2d 955, 955, lv denied
99 NY2d 654).

     Defendant further contends that he was denied effective
assistance of counsel because, inter alia, defense counsel failed to
object to an investigator’s testimony that constituted “inferential
bolstering” of the victim’s pretrial identification of defendant and
because defense counsel asked questions during jury selection
concerning the victim’s pretrial identification. We reject that
contention. With respect to the alleged inferential bolstering, we
conclude that the investigator’s passing reference to the victim’s
pre-arrest identification of “the individual” did not constitute
improper bolstering inasmuch as it was “offered for the relevant,
nonhearsay purpose of explaining the investigative process and
completing the narrative of events leading to the defendant’s arrest”
several days later (People v Rosario, 100 AD3d 660, 661, lv denied 20
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                                                         KA 09-01189

NY3d 1065; see People v Perry, 62 AD3d 1260, 1261, lv denied 12 NY3d
919; People v Mendoza, 35 AD3d 507, 507, lv denied 8 NY3d 987). The
failure to make an objection that has “little or no chance of success”
does not constitute ineffective assistance of counsel (People v
Stultz, 2 NY3d 277, 287, rearg denied 3 NY3d 702; see People v
Dashnaw, 37 AD3d 860, 863, lv denied 8 NY3d 945). In any event, even
assuming, arguendo, that the testimony constituted inferential
bolstering, we note that defense counsel “may have had a strategic
reason for failing to [object to such testimony] inasmuch as he may
not have wished to draw further attention to [such testimony]” (People
v Williams, 107 AD3d 1516, 1517, lv denied 21 NY3d 1047; see People v
Bethune, 80 AD3d 1075, 1076-1077, lv denied 17 NY3d 792).

     With respect to defense counsel’s reference during jury selection
to the victim’s prior identification of defendant, we conclude that
defendant failed to “ ‘demonstrate the absence of strategic or other
legitimate explanations’ for counsel’s allegedly deficient conduct”
(People v Caban, 5 NY3d 143, 152; see People v Benevento, 91 NY2d 708,
712). Identification was the central issue at trial, and defense
counsel’s primary strategy was to suggest that the victim had
misidentified defendant as the perpetrator. The specific question
during jury selection to which defendant objects was designed to
enable defense counsel to determine whether the particular prospective
juror believed that the victim’s identification could be considered
reliable when it was not contemporaneous with the incident and, thus,
the question was consistent with defense counsel’s strategy of
attempting to discredit the reliability of the victim’s
identification. Viewing defense counsel’s representation as a whole,
we conclude that defendant received effective assistance of counsel
(see generally People v Baldi, 54 NY2d 137, 147).

     Defendant further contends that he was denied a fair trial based
upon the cumulative effect of prosecutorial misconduct. Defendant
failed to preserve his contention for our review with respect to many
of the instances of alleged prosecutorial misconduct (see People v
Scission, 60 AD3d 1391, 1392, lv denied 12 NY3d 859, reconsideration
denied 13 NY3d 749), and we conclude in any event that “[a]ny
‘improprieties were not so pervasive or egregious as to deprive
defendant of a fair trial’ ” (People v Johnson, 303 AD2d 967, 968, lv
denied 100 NY2d 583).

     We reject defendant’s contention that the photo array was unduly
suggestive and thus that County Court erred in refusing to suppress
the identification evidence. The People met their initial burden of
establishing the reasonableness of the police conduct with respect to
the photo array, and defendant failed to meet his ultimate burden of
proving that the identification procedure was unduly suggestive (see
generally People v Chipp, 75 NY2d 327, 335, cert denied 498 US 833).

     Finally, there is no merit to defendant’s further contention that
he was improperly sentenced as a second child sexual assault felony
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                                                         KA 09-01189

offender (see generally People v Armbruster, 32 AD3d 1348, 1349).




Entered:   March 28, 2014                      Frances E. Cafarell
                                               Clerk of the Court
