This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 152
The People &c.,
            Respondent,
        v.
Willie L. Wragg,
            Appellant.




          Shirley A. Gorman, for appellant.
          Geoffrey Kaeuper, for respondent.




RIVERA, J.:


          Defendant Willie L. Wragg seeks reversal of his
conviction of sexual abuse in the first degree on the ground that
he was denied meaningful representation due to his attorney's
alleged deficient performance.    In the alternative, defendant

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contends he should be resentenced because the trial court
improperly treated him as a second child sexual assault felony
offender, even though the People failed to file a predicate
offender statement prior to the commencement of trial, as
provided for under CPLR 400.19 (2).    We find both grounds without
merit, and therefore affirm the Appellate Division.
          Defendant was charged with one count of sexual abuse in
the first degree for touching the vaginal area of a minor (Penal
Law § 130.65 [3]).   At defendant's January 2009 jury trial, the
victim, nine-year old MH, testified that on June 22, 2008 she was
walking from her friend's house when a stranger "came out of
nowhere" and touched her "front private part" outside her
clothing, with his hand.   In court she identified the assailant
as the defendant.
          According to the testimony of two police officers who
interviewed MH the day of the incident, she described for them
what happened and the assailant, including what he wore.    She
then traveled with police to the site where she was assaulted,
and although the police canvassed the neighborhood, at the time
they did not come up with a suspect.   Approximately ten days
later, a police investigator spoke with MH and again took a
description from her.   He then spoke to a daycare provider who
lived near MH's home, and based on his description, the provider
identified defendant.   According to the investigator he met with
MH again eight days later and she identified a suspect.    Five


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days later the police arrested defendant.
           Defendant presented a mistaken identify defense at
trial.   Counsel began to lay the groundwork for that defense
during jury voir dire.   While questioning prospective jurors
about how counsel might establish that the child was mistaken, he
asked whether they would be more or less likely to accept that
the victim was honestly mistaken if she made an identification
days after the initial assault.     At one point, the following
discussion was held.


           "DEFENSE COUNSEL: Perjury is lying under
           oath. Does somebody have to be lying to be
           mistaken?
           PROSPECTIVE JUROR 15: No.
           DEFENSE COUNSEL: There is a saying that
           honest people can be honestly mistaken and
           certain people can be certainly wrong. [Sir,]
           is it possible she just can be pointing at
           the wrong guy?
           PROSPECTIVE JUROR 14: She could, in fact.
           DEFENSE COUNSEL: Do you think you would be
           more likely to accept that if you learned she
           didn't identify Mr. Wragg until three days
           later."1

           Then later, counsel directly asked how the child's
mistake might influence the juror's determination of
defendant's guilt.

     1
       In fact, as noted during the prosecutor's voir dire
questions, MH did not identify the defendant until three weeks
after she was attacked.

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          "DEFENSE COUNSEL: But, if through the
          cross-examination of her you have a
          reasonable doubt as to accuracy of her
          identification, how would you vote?
          PROSPECTIVE JUROR 13: She didn't actually
          think he did it?
          DEFENSE COUNSEL: If you don't believe her,
          not just that you don't believe her, but you
          believe she could be mistaken, when she
          points to Willie, how would you vote?"

          Counsel built on this theory of the case during
cross-examination of the People's witnesses.   Counsel first
challenged MH, asking her questions suggesting her memory
was flawed and that she had been coached.   He then elicited
testimony from the police who interviewed MH that she, in
fact, did not provide a description on her own, but rather
gave information in response to the officers' directed
questions about the height and weight of the assailant.
Counsel also affirmed through testimony from MH's friend
that shortly after the incident she, MH, and others went to
a house near where the incident occurred and MH identified
someone in the house, not the defendant, as the assailant.
This contradicted MH's direct testimony that she did not
identify the man in the house as the person who touched her.
          Defendant also presented testimony from witnesses
regarding his whereabouts around the time of the incident.
His wife and one of her coworkers testified that they left
work together midafternoon, picked up defendant and together


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went to two local stores.   Along the way defendant purchased
lottery tickets.   Defendant sought to support this testimony
by admitting into evidence lottery tickets time stamped at
5:20 pm.   These witnesses further testified that defendant
and his wife returned home at 5:20, and his wife further
claimed that they remained inside their home the rest of the
evening.
           The prosecutor attacked the credibility of these
witnesses on cross-examination.     First, she confronted
defendant's wife with a copy of her coworker's timecard,
which indicated that the coworker left more than an hour
later than the witnesses had originally claimed.     Second,
the coworker claimed she did not remember exactly when she
left, but acknowledged the hour indicated on the time stamp.
           Defendant also presented testimony from a neighbor
and self-described good friend and mother of his godchild,
who stated that on the day of the incident he came to her
home at 5:00 am, and left several times throughout the day
because he was cooking dinner.    She too testified that he
left with his wife and the coworker in the afternoon, and
that she saw them return home later that evening.     The
prosecutor challenged the veracity of the witness by
eliciting testimony suggesting that her memory of the day of
the incident was uncannily certain, compared to her memory
of other days and times that same week, and that she had


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been arrested for petit larceny.
          During summation, the prosecutor, as relevant
here, used sympathetic terms to describe MH; referenced
getting "justice for what happened to her"; told the jury
that "[MH's] testimony standing alone is enough to convict
Willie Wragg" and that there was no "no reason not to
believe [her]"; used the terms "bogus," "bologna," and
"poppycock" when describing the theory of the defense; that
she "loved" certain witnesses as well as had a "favorite
part" of a defense witness's testimony; and explained that
while she had previously told MH that "[they] were going to
be called the jury...that is a far cry from coaching."
Defense counsel, for his part, argued on summation that this
was a case of mistaken identity, which turned on MH's sole
eyewitness, split-second view of the assailant.    He reminded
the jury that there was testimony that MH initially
identified someone else as the assailant.   He contended that
MH's memory was weak, and that even if she did not lie, she
was coached.   He further suggested that the police testimony
about the time of the incident was suspiciously similar, and
that they had some motive in the case to make their
testimony fit the facts.   He also highlighted that no
physical evidence established defendant's guilt.
          After deliberating approximately two hours, the
jury returned a guilty verdict on the sole count.    On the


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initial day of sentencing, the court stated on the record
that defendant should be treated as a second child sexual
assault felony offender, and adjourned to allow the People
time to prepare the predicate felony offender papers.
Thereafter, over defense counsel's objection, the People
filed the predicate offender statement, alleging defendant
was previously convicted of first degree rape for engaging
in sexual intercourse with an eleven-year old female family
member, and that he was 18 years or older at the time of the
commission of the offense.   Following a hearing to establish
the facts of the underlying predicate conviction, the court
sentenced defendant as a second child sexual assault felony
offender to a determinate term of 15 years with 5 years of
post-release supervision, the maximum sentence allowed by
law.
          The Appellate Division affirmed (115 AD3d 1281
[4th Dept 2014]), and a Judge of this Court granted leave to
appeal (23 NY3d 1070 [2014]).   We now affirm.
          Defendant claims he was denied a fair trial due to
alleged critical mistakes by his trial counsel.   These
include counsel's revelation to prospective jurors about
MH's inadmissible, prior out-of-court identification of
defendant; his failure to object to improper bolstering by
police regarding this identification; and his failure to
respond or object to multiple instances of prosecutorial


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misconduct.    The People respond that defendant's claims
amount to no more than dissatisfaction with counsel's
legitimate -- albeit unsuccessful -- trial tactics, and that
counsel cannot be faulted for failing to object to alleged
prosecutorial impropriety that was neither egregious nor
prejudicial.    We find defendant's arguments unpersuasive,
and conclude that he has failed to point to the type of
missteps by defense counsel that establish a performance so
lacking in competence and strategic purpose that it fails to
meet the constitutional minimum standard of professionalism
recognized by this Court.
          In determining whether counsel provided effective
assistance, "[t]he core of the inquiry is whether defendant
received meaningful representation"      (People v Benevento, 91
NY2d 708, 712 [1998]).    In making that assessment, the court
must view counsel's performance in its totality (see People
v Baldi, 54 NY2d 137, 147 [1981]).      Defendant, of course,
bears the burden of establishing his claim that counsel's
performance is constitutionally deficient (People v Barboni,
21 NY3d 393, 406 [2013]).    Thus, defendant must demonstrate
the absence of strategic or other legitimate explanations
for counsel's alleged failure (People v Satterfield, 66 NY2d
796, 799-800 [1985].    However, a reviewing court must be
careful not to "second-guess" counsel, or assess counsel's
performance "with the clarity of hindsight," effectively


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substituting its own judgment of the best approach to a
given case (Benevento, 91 NY2d at 712; see also Satterfield,
66 NY2d at 799-800 ["It is not for this court to second-
guess whether a course chosen by defendant's counsel was the
best trial strategy, or even a good one, so long as
defendant was afforded meaningful representation"]).
          Defendant argues that where the sole defense was
the child's misidentification there is no tactical advantage
to revealing that MH in fact recognized defendant before
trial, or in permitting the prosecutor, in turn, and without
objection, to remind the jury that MH previously identified
defendant as the assailant.    We disagree.
          As the record establishes, during the voir dire
counsel asked questions to elicit whether prospective jurors
were open to the possibility that the child made an honest
mistake about who touched her.    This was a critical line of
inquiry because the prospective jurors initially appeared
hesitant to accept that a child would lie about being
sexually assaulted, but appeared open to the suggestion that
MH could have innocently identified the wrong person as her
assailant.   By using the information to question prospective
jurors about their reactions to the child's identification
of defendant some time after the assault rather than on the
same day, a fact repeated by the prosecutor without
objection, counsel sought to ensure selection of jurors


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receptive to his mistaken identification defense and his
arguments about the existence of reasonable doubt of
defendant's guilt based on the child's error.    Given that
the defense hinged on the jurors' belief that the child was
mistaken about defendant, and that the prospective jurors
were inclined to believe the child, sight unseen, we cannot
say that counsel failed to employ a legitimate trial
strategy by putting in question MH's identification at the
earliest possible opportunity.
          Defendant also claims that counsel was ineffective
for failing to object when one of the investigators
testified that MH gave him a description of the assailant.
According to defendant, this testimony inferentially
bolstered MH's in-court identification.    However, as with
counsel's questions to the prospective jurors, the
investigator's testimony that MH identified defendant almost
three weeks after the assault, supported counsel's argument
that MH made an honest, even understandable, mistake given
the lapse of time (see People v Brown, 17 NY3d 742, 744
[2011] [no error where counsel failed to object to remarks
by prosecutor impugning defendant because they were
consistent with counsel's theory of the case]).    Moreover,
the tactic benefitted from testimony by MH's friend that MH
identified someone other than the defendant within a short
span of time after the incident.    That the strategy


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ultimately failed does not make counsel's representation
ineffective (see People v Benn, 68 NY2d 941, 942 [1986]
[ineffective assistance of counsel "requires proof of true
ineffectiveness rather than mere disagreement with
strategies and tactics that failed"]; see also People v
Lester, 124 AD2d 1052, 1053 [4th Dept 1986][counsel engaged
in a reasonable strategy to "cast doubt upon the reliability
of the eyewitnesses' in-court identification" by
"attempt[ing] to show that the in-court identification was
influenced by an impermissibly suggestive photo array and
lineup"]).
          Defendant's other complaint that counsel was
ineffective for failing to object to a pattern of
prosecutorial misconduct is similarly without merit. First,
we note that this is not a case where defense counsel
remained silent while the prosecutor exceeded the limits of
acceptable argument.   Counsel lodged several objections,
which the court sustained.   Second, while the People concede
that some of the prosecutor's summation remarks were
inappropriate, they correctly argue that the remarks were
not so egregious that counsel's failure to object renders
his overall representation constitutionally defective.
Here, the prosecutor used terms of endearment for the child
and argued that the jury should believe the child's
testimony that she was molested.      Those comments, focused as


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they were on the attack rather than on the propriety of the
child's identification of defendant, did not detract from
the theory of the defense that days and weeks after the
event the child made the honest mistake of picking the wrong
person as her attacker.
          To the extent defendant complains about the
prosecutor's other remarks, we cannot say on this record
that counsel's failure to object exposed the jury to the
type of prosecutorial abuse this Court has previously held
to warrant reversal of the conviction.   For example, the
remarks are not similar to the prosecutor's statements in
People v Wright (25 NY3d 769 [2015]), People v Fisher (18
NY3d 964 [2012]), or People v Ashwal (39 NY2d 105 [1976]).
In those cases the prosecutor, during summation, exceeded
the bounds of proper conduct by making misleading
representations about physical evidence, encouraging
inferences of guilt based on facts not in evidence, and
improperly conveying guilt in uncharged crimes (see Wright,
25 NY3d at 780-81 [prosecutor incorrectly stated in her
summation that defendant had left DNA evidence at the crime
scene, when a DNA analysis indicated there was no match];
Fisher, 18 NY3d at 966-67 [prosecutor's summation was
improper where she relied on facts not in evidence, her
"less then frank"   statement that a witness was not
receiving a benefit for testifying, and an admonishment to


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jury that "their acceptance of the testimony of the child
witnesses was essential to the administration of justice"];
Ashwal, 39 NY2d at 110 [prosecutor improperly conveyed the
impression that defendant had killed informant to prevent
him from testifying in defendant's current trial for drug
possession]).   Here, the prosecutor's summation rhetoric
does not equate, as in the cases above, to the type of
conduct that we have previously held denied the defendant a
fair trial.
          Defendant further contends that counsel was
ineffective for failing to object when at various points the
prosecutor injected her credibility into the trial,
essentially serving as an unsworn witness for the People.
However, the record fails to support this characterization
of the prosecutor's conduct and defendant's other complaints
about the prosecutor's trial conduct are similarly
unpersuasive.
          Defendant's final claim concerning counsel's use
of the alibi witnesses and his cross-examination of MH is
groundless.   First, counsel cannot be held ineffective
because the People impeached the albi witnesses when they
were caught in a lie (see People v Rose, 57 NY2d 837, 839
[1982]["Defense counsel's reliance on the testimony of a
witness whose credibility was subsequently impeached on
cross-examination may have been an inadvisable trial tactic,


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but it did not constitute ineffective assistance"]).
Second, defense counsel did not err by attempting to impeach
the complainant and sole eyewitness by pointing to
discrepancies between her trial and grand jury testimonies,
even if counsel was unsuccessful in his efforts to do so
(see Benevento, 91 NY2d at 712-13 ["As long as the defense
reflects a reasonable and legitimate strategy under the
circumstances and evidence presented, even if unsuccessful,
it will not fall to the level of ineffective assistance"]).
          Viewing counsel's representation in its totality,
defendant received effective assistance of counsel under our
state standard (see Baldi, 54 NY2d at 147).   Since "our
state standard ...offers greater protection than the federal
test, we necessarily reject defendant's federal
constitutional challenge by determining that he was not
denied meaningful representation under the State
Constitution" (People v Caban, 5 NY3d 143, 156 [2005]).
          Turning to defendant's alternative request for
relief, defendant argues that if his conviction stands, he
should be resentenced because the People failed to file a
predicate felony conviction statement prior to the
commencement of trial, as provided in CPL 400.19 (2).   On
this appeal, defendant does not dispute that he has a
predicate felony conviction for a sexual assault against a
child based on his January 2000, first degree rape


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conviction.   As such, this conviction makes him subject to
sentencing enhancement under Penal Law § 70.07.    Nor does he
contend that the court imposed an incarcetory period outside
the statutory sentencing range for his current conviction.
Instead, he claims that the People exercised their
discretion to avoid an enhanced sentence in his case.
However, this argument relies on a misinterpretation of the
applicable statutes, and is no basis to mandate that
defendant be resentenced.
          Penal Law § 70.07(1) provides that "[a] person who
stands convicted of a felony offense for a sexual assault
against a child, having been subjected to a predicate felony
conviction for a sexual assault against a child, must be
sentenced in accordance with" a statutorily specified
enhanced sentencing range.    The governing procedures for
determining whether a defendant is subject to a predicate
felony conviction for purposes of Penal Law § 70.07 are
specified in CPL 400.19 (see Penal Law § 70.07[3]).2
Pursuant to CPL 400.19 (2),
          "[w]hen information available to the people
          prior to the trial of a felony offense for a
          sexual assault against a child indicates that


     2
       We have no occasion to consider the CPL 400.19 procedures
as they apply to the statutorily required determination of
whether an offender was eighteen years or older at the time of
the commission of the predicate offense because defendant's age,
as it relates to the prior felony, is not at issue on this
appeal.

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          the defendant may have previously been
          subjected to a predicate felony conviction
          for a sexual assault against a child, a
          statement may be filed by the prosecutor at
          any time before trial commences..."
          (CPL 400.19[2]).

The defendant must be given a copy of the statement and an
opportunity to controvert allegations contained therein (CPL
400.19 [3]).   Any allegations not controverted "shall be
deemed to have been admitted by the defendant" (id.).    Where
the defendant controverts an allegation, the statute
requires the court hold a hearing and make a finding as to
whether the defendant has been subjected to a predicate
felony conviction within the meaning of Penal Law § 70.07
(see CPL 400.19 [6]).   These procedures ensure that a
defendant has appropriate notice and opportunity to
challenge allegations of the existence of a sentence-
enhancing predicate conviction (cf. People v Bouyea, 64 NY2d
1140, 1142 [1985] [the statutory purpose for filing a
predicate statement in second felony offender cases, which
contain procedures under CPL 400.21 that are sufficiently
similar to the notice and hearing requirements in CPL
400.19, includes "providing defendant with reasonable notice
and an opportunity to be heard"]).
          It is apparent from the statutory text that
convicted second child sexual assault felony offenders must
be sentenced under Penal Law § 70.07.   Nevertheless,

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defendant contends that because CPL 400.19 (2) states the
People's predicate "statement may be filed by the prosecutor
at anytime before trial commences" the legislature intended
to give the People discretion to avoid enhanced sentencing
under Penal Law § 70.07 for this category of defendants.    He
argues that this interpretation of the statute follows
logically, given that all the other predicate sentencing
statutes, except for those applicable to persistent child
sexual offenders, mandate enhanced sentences, and the CPL
sections setting forth the corresponding procedures for
determining predicate convictions under those statutes
require that the prosecutor must file the statement before
sentencing (see CPL 400.15 ["Procedure for Determining
Whether Defendant is a Second Violent Felony Offender"]; CPL
400.16 ["Procedure for Determining Whether Defendant is a
Persistent Violent Felony Offender"]; CPL 400.21 ["Procedure
for Determining Whether Defendant is a Second Felony
Offender or a Second Felony Drug Offender"]).   According to
defendant, the legislative choice to use "may" in CPL 400.19
was intended to give prosecutors discretion to seek enhanced
sentencing only when the prosecutor exercised this
discretion prior to trial.
          This interpretation ignores the text of Penal Law
§ 70.07 which contains no limiting language in its
sentencing provisions.   The explicit language in section one


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states that a person convicted of a felony offense for
sexual assault against a child, who has a predicate felony
conviction for child sexual assault, "must be sentenced" in
accordance with Penal Law § 70.07 sentencing provisions.
The applicable time for invoking the procedures contained in
CPL 400.19 does not change the import of the mandatory
language in Penal Law § 70.07, which subjects this category
of offenders to legislatively promulgated enhanced
sentences.    Furthermore, the specific language in CPL 400.19
(2) upon which defendant relies merely permits filing of the
statement before commencement of a trial.    It does not
prohibit filing afterwards, and before sentencing.    As
courts have concluded, "may" does not mean "must" (see
People v Armbruster, 32 AD3d 1348 [4th Dept 2006]; People v
Spruill, NYLJ 2/15/02, vol 227, No. 31 [Crim Ct, New York
County]).    Notwithstanding defendant's requests that we read
the statute otherwise, this Court is without authority to
read mandatory language into a statute where it is otherwise
absent (Statutes Law § 94 [McKinney]; Lederer v Wise Shoe
Co., 276 NY 459, 465 [1938] ["We do not by implication read
into a clause of a rule or statute a limitation for which we
find no sound reason and which would render the clause
futile."]).
            We further note that because Penal Law § 70.07, on
its face, applies to persons once convicted of a felony


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                               - 19 -                        No. 152

offense for a sexual assault against a child, CPL 400.19 (2)
provides a mechanism for filing the statement before
conviction.    By allowing for filing at a time when any
challenges to the underlying predicate offense can be
resolved by the court before trial, this provision serves
the additional purpose of facilitating plea negotiation by
confirming defendant's sentencing exposure should he be
convicted.    Furthermore, and as a consequence, this
provision, similar to other statutes, has the added benefit
of potentially sparing child victims the stress of reliving
the sexual assault by the retelling of the events in a
courtroom (see generally Matter of Joanne P., 144 Misc 2d
754, 756 n2 [Fam Ct 1989] [explaining that Article 10
proceedings were "designed to avoid the necessity of the
child having to testify in court as to abuse due to the
obvious trauma that often accompanies such testimony"]).
          This interpretation of Penal Law § 70.07 and CPL
400.19 is fully supported by the legislative history which
establishes that the enhanced sentencing laws were intended
to increase penalties against sex offenders to better
protect the public, and to address recidivism (see New York
Bill Jacket 2000 823b Chp 1 pg. 4 [to "[e]nact[] a provision
for repeat child molesters who commit particularly serious
sexual assaults against children and requires that they
receive enhanced penalties, including mandatory


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sentences"]).     Defendant's interpretation, however, would
mandate enhanced sentencing for every sex offender except
those whose victims are children.        Certainly the
legislature, concerned with public safety and punishment of
repeat offenders, would not grant discretion to prosecutors
to avoid higher sentences for perpetrators of sex crimes
against a particularly vulnerable class of victims.
            Accordingly, the order of the Appellate Division
should be affirmed.
*   *   *     *    *   *   *   *     *      *   *   *   *   *   *    *
Order affirmed. Opinion by Judge Rivera. Chief Judge
Lippman and Judges Pigott, Abdus-Salaam and Stein concur.
Judge Fahey took no part.

Decided November 19, 2015




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