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

321
KA 13-02061
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

CLARENCE W. LOOMIS, DEFENDANT-APPELLANT.


MITCHELL LAW OFFICE, OSWEGO (RICHARD C. MITCHELL, JR., OF COUNSEL),
FOR DEFENDANT-APPELLANT.

GREGORY S. OAKES, DISTRICT ATTORNEY, OSWEGO (AMY L. HALLENBECK OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Oswego County Court (Walter W.
Hafner, Jr., J.), rendered October 1, 2013. The judgment convicted
defendant, upon a jury verdict, of sexual abuse in the first degree
(two counts) and sexual abuse in the second 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 two counts of sexual abuse in the first degree (Penal Law §
130.65 [3]), and one count of sexual abuse in the second degree (§
130.60 [2]), defendant contends that he was denied effective
assistance of counsel because his attorney failed to object at trial
to the introduction of his written statements to the police on the
ground that he could not read or write, and to certain questioning by
the prosecutor of a prosecution witness. We reject that contention.
With respect to defendant’s contention concerning his written
statements, it is well settled that “[t]here 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). Furthermore, in order
“[t]o prevail on a claim of ineffective assistance of counsel, a
defendant must demonstrate the absence of strategic or other
legitimate explanations for counsel’s failure to pursue ‘colorable’
claims” (People v Garcia, 75 NY2d 973, 974, quoting People v Rivera,
71 NY2d 705, 709; see People v Carver, 124 AD3d 1276, 1279). In
addition, a “single error may qualify as ineffective assistance, but
only when the error is sufficiently egregious and prejudicial as to
compromise a defendant’s right to a fair trial” (Caban, 5 NY3d at 152;
see People v Atkins, 107 AD3d 1465, 1465, lv denied 21 NY3d 1040).
                                 -2-                              321
                                                            KA 13-02061

     Here, an objection to the introduction of defendant’s written
statements had virtually no chance of success (see e.g. People v
Maerling, 46 NY2d 289, 294, 303; People v Bray, 295 AD2d 996, 997, lv
denied 98 NY2d 694), defendant failed to establish that counsel did
not have tactical or other valid reasons for failing to object (see
Garcia, 75 NY2d at 974), and he failed to demonstrate any prejudice
from this alleged error (see Caban, 5 NY3d at 152). Consequently,
with respect to that contention and to the remaining ground that
defendant raises in support of his contention of ineffective
assistance of counsel, we conclude that “the evidence, the law, and
the circumstances of [this] particular case, viewed in totality and as
of the time of the representation, reveal that the attorney provided
meaningful representation” (People v Baldi, 54 NY2d 137, 147; see
People v Hall, 106 AD3d 1513, 1514, lv denied 22 NY3d 956).

     The sentence is not unduly harsh or severe.




Entered:   March 20, 2015                          Frances E. Cafarell
                                                   Clerk of the Court
