People v. Wragg
| Decision Date | 19 November 2015 |
| Docket Number | No. 152,152 |
| Citation | 26 N.Y.3d 403,44 N.E.3d 898,2015 N.Y. Slip Op. 08453,23 N.Y.S.3d 600 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Willie L. WRAGG, Appellant. |
| Court | New York Court of Appeals Court of Appeals |
Shirley A. Gorman, Brockport, for appellant.
Sandra Doorley, District Attorney, Rochester (Geoffrey Kaeuper of counsel), for respondent.
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 contends he should be resentenced because the trial court improperly treated him as a second child sexual assault felony offender, inasmuch as the People failed to file a predicate offender statement prior to the commencement of trial, as provided for under CPL 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 10 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 days later the police arrested defendant.
Defendant presented a mistaken identity 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.
Then later, counsel directly asked how the child's mistake might influence the juror's determination of defendant's guilt.
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 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 p.m. 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 a.m., 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 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 reason not to believe [her]”; used the terms “bogus,” “bologna,” and “[p]oppycock” when describing the theory of the defense; that she “love[d]” 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 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 a female family member less than 11 years old, 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 five years of postrelease supervision, the maximum sentence allowed by law.
The Appellate Division affirmed (115 A.D.3d 1281, 982 N.Y.S.2d 654 [4th Dept.2014] ), and a Judge of this Court granted leave to appeal (23 N.Y.3d 1070, 994 N.Y.S.2d 329, 18 N.E.3d 1150 [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 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 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998] [internal quotation marks omitted] ). In making that assessment, the court must view counsel's performance in its totality (see People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ). Defendant, of course, bears the burden of establishing his claim that counsel's performance is constitutionally deficient (People v. Barboni, 21 N.Y.3d...
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People v. Wragg
...26 N.Y.3d 40344 N.E.3d 89823 N.Y.S.3d 600The PEOPLE of the State of New York, Respondent,v.Willie L. WRAGG, Appellant.Court of Appeals of New York.Nov. 19, 2015.23 N.Y.S.3d 601Shirley A. Gorman, Brockport, for appellant.Sandra Doorley, District Attorney, Rochester (Geoffrey Kaeuper of couns......