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

1256
KA 12-02263
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, NEMOYER, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ZACHARY STRAUSS, DEFENDANT-APPELLANT.


PETER J. DIGIORGIO, JR., UTICA, FOR DEFENDANT-APPELLANT.

SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Oneida County Court (Michael L.
Dwyer, J.), rendered January 30, 2012. The judgment convicted
defendant, upon a jury verdict, of rape in the first degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: On appeal from a judgment convicting him, upon a
jury verdict, of rape in the first degree (Penal Law § 130.35 [1]),
defendant contends that the verdict is against the weight of the
evidence on the issue of forcible compulsion. Viewing the evidence in
light of the elements of the crime 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 People v Black, 137 AD3d 1679,
1680, lv denied 27 NY3d 1128; see generally People v Bleakley, 69 NY2d
490, 495).

     Defendant’s contention that the People improperly failed to seek
an advance ruling concerning the admissibility of evidence of
defendant’s involvement in a drug transaction and threats to commit
suicide is not preserved for our review (see People v Thomas, 226 AD2d
1071, 1071-1072, lv denied 88 NY2d 995; People v Clark, 203 AD2d 935,
936, lv denied 83 NY2d 965). Likewise, defendant’s challenge to the
admissibility of an unredacted videotape of his interview with the
police is not preserved for our review (see CPL 470.05 [2]). We
decline to exercise our power to review those contentions as a matter
of discretion in the interest of justice (see CPL 470.15 [6] [a]).

     Defendant also failed to preserve for our review his contention
that the verdict is inconsistent insofar as the jury found defendant
guilty of rape in the first degree but not guilty of unlawful
imprisonment in the second degree. Defendant failed to object to the
verdict before the jurors were discharged (see People v Alfaro, 66
                                 -2-                          1256
                                                         KA 12-02263

NY2d 985, 987; People v Brooks, 139 AD3d 1391, 1392). In any event,
viewing the elements of those two crimes as charged to the jury
without regard to the accuracy of those instructions (see People v
DeLee, 24 NY3d 603, 608; People v Tucker, 55 NY2d 1, 7-8, rearg denied
55 NY2d 1039), we conclude that there is no inconsistency in the
verdict because an acquittal on the charge of unlawful imprisonment in
the second degree is not “conclusive as to a necessary element” of
rape in the first degree (Tucker, 55 NY2d at 7; see generally People v
Barfield, 138 AD2d 497, 497, lv denied 71 NY2d 1023).

     Defendant did not preserve for our review his contention that he
was deprived of a fair trial by prosecutorial misconduct on summation
(see People v Symonds, 140 AD3d 1685, 1685, lv denied 28 NY3d 937).
In any event, we conclude that the prosecutor’s remarks constituted
fair comment upon the evidence or fair response to the summation of
defense counsel (see People v Jackson, 141 AD3d 1095, 1096; see also
People v Lyon, 77 AD3d 1338, 1339, lv denied 15 NY3d 954).

     Finally, we reject defendant’s contention that he was denied
effective assistance of counsel. “There can be no denial of effective
assistance of trial counsel arising from counsel’s failure to ‘make a
motion or argument that has little or no chance of success’ ” (People
v Caban, 5 NY3d 143, 152, quoting People v Stultz, 2 NY3d 277, 287,
rearg denied 3 NY3d 702).




Entered:   February 3, 2017                     Frances E. Cafarell
                                                Clerk of the Court
