Opinion
2016–10612 Ind.No. 5661/15
05-01-2019
The PEOPLE, etc., Respondent, v. James AROER, Appellant.
Paul Skip Laisure, New York, N.Y. (Nao Terai of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Ruth E. Ross, and Julian Joiris of counsel), for respondent.
Paul Skip Laisure, New York, N.Y. (Nao Terai of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Ruth E. Ross, and Julian Joiris of counsel), for respondent.
JOHN M. LEVENTHAL, J.P., COLLEEN D. DUFFY, FRANCESCA E. CONNOLLY, LINDA CHRISTOPHER, JJ.
DECISION & ORDERAppeal by the defendant from a judgment of the Supreme Court, Kings County (Cassandra Mullen, J.), rendered September 14, 2016, convicting him of burglary in the second degree as a sexually motivated felony and sexual abuse in the first degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, he was not deprived of the effective assistance of counsel by his attorney's failure to seek a Wade hearing (see United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 ) challenging the admissibility of pretrial identification evidence, since "[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 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213, quoting People v. Stultz, 2 N.Y.3d 277, 287, 778 N.Y.S.2d 431, 810 N.E.2d 883 ; see People v. Dark, 122 A.D.3d 1321, 1322, 996 N.Y.S.2d 830 ). Here, four days after she was attacked, the complainant spontaneously recognized the defendant on the street before notifying the police, so the identifications made a short while later when the police arrived were merely confirmatory (see People v. Hernandez, 159 A.D.3d 580, 580, 70 N.Y.S.3d 46 ; People v. Benjamin, 2 A.D.3d 740, 741, 768 N.Y.S.2d 659 ; People v. Anderson, 260 A.D.2d 387, 388, 689 N.Y.S.2d 153 ). Under the circumstances, defense counsel reasonably could have concluded that a Wade hearing would have been futile, and counsel's decision not to seek such a hearing did not deprive the defendant of meaningful representation (see People v. Rotger, 129 A.D.3d 1330, 1332, 11 N.Y.S.3d 734 ; People v. Dark, 122 A.D.3d at 1323, 996 N.Y.S.2d 830 ; see also People v. Walker, 115 A.D.3d 889, 890, 982 N.Y.S.2d 378 ). Moreover, viewing the record as a whole, the defendant was provided with meaningful representation (see People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584 ; People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 ).
The defendant's contention that certain testimony of the complainant's boyfriend constituted improper bolstering is unpreserved for appellate review (see CPL 470.05[2] ; People v. Garcia, 165 A.D.3d 976, 83 N.Y.S.3d 909 ). In any event, the testimony was properly admitted (see People v. Arroyo, 128 A.D.3d 843, 845, 9 N.Y.S.3d 137 ; People v. Jarvis, 127 A.D.3d 992, 992–993, 4 N.Y.S.3d 924 ). Thus, counsel's failure to object does not constitute ineffective assistance of counsel (see People v. Reed, 151 A.D.3d 1821, 57 N.Y.S.3d 311 ). Further, the defendant waived his argument that certain testimony of the police officer who arrested him also constituted improper bolstering, as the defendant himself elicited the testimony (see People v. Romero, 143 A.D.3d 1003, 1004, 39 N.Y.S.3d 507 ).
The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
LEVENTHAL, J.P., DUFFY, CONNOLLY and CHRISTOPHER, JJ., concur.