Opinion
321 KA 13-02061
03-20-2015
The PEOPLE of the State of New York, Respondent, v. 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.
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.
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ.
Opinion
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 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, rearg. denied 3 N.Y.3d 702, 785 N.Y.S.2d 29, 818 N.E.2d 671 ). 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 N.Y.2d 973, 974, 556 N.Y.S.2d 505, 555 N.E.2d 902, quoting People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 ; see People v. Carver, 124 A.D.3d 1276, 1279, 999 N.Y.S.2d 632 ). 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 N.Y.3d at 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 ; see People v. Atkins, 107 A.D.3d 1465, 1465, 967 N.Y.S.2d 318, lv. denied 21 N.Y.3d 1040, 972 N.Y.S.2d 537, 995 N.E.2d 853 ).
Here, an objection to the introduction of defendant's written statements had virtually no chance of success (see e.g. People v. Maerling, 46 N.Y.2d 289, 294, 303, 413 N.Y.S.2d 316, 385 N.E.2d 1245 ; People v. Bray, 295 A.D.2d 996, 997, 743 N.Y.S.2d 360, lv. denied 98 N.Y.2d 694, 747 N.Y.S.2d 413, 776 N.E.2d 2 ), defendant failed to establish that counsel did not have tactical or other valid reasons for failing to object (see Garcia, 75 N.Y.2d at 974, 556 N.Y.S.2d 505, 555 N.E.2d 902 ), and he failed to demonstrate any prejudice from this alleged error (see Caban, 5 N.Y.3d at 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 ). 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 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 ; see People v. Hall, 106 A.D.3d 1513, 1514, 964 N.Y.S.2d 390, lv. denied 22 N.Y.3d 956, 977 N.Y.S.2d 187, 999 N.E.2d 552 ).
The sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.