The People v. Willie L. WraggThe People v. Willie L. Wragg
Case Information
*1 This opinion is uncorrected and subject to revision before publication in the New York Reports. ----------------------------------------------------------------- No. 152 The People &c., Respondent, v. Willie L. Wragg, Appellant.
Shirley A. Gorman, for appellant. Geoffrey Kaeuper, for respondent.
RIVERA, J.:
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, even though the People failed to file a predicate
offender statement prior to the commencement of trial, as
provided for under
Defendant was charged with one count of sexual abuse in
the first degree for touching the vaginal area of a minor (
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 ten 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 identify 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.
"DEFENSE COUNSEL: Perjury is lying under oath. Does somebody have to be lying to be mistaken? PROSPECTIVE JUROR 15: No.
DEFENSE COUNSEL: There is a saying that honest people can be honestly mistaken and certain people can be certainly wrong. [Sir,] is it possible she just can be pointing at the wrong guy? PROSPECTIVE JUROR 14: She could, in fact.
DEFENSE COUNSEL: Do you think you would be more likely to accept that if you learned she didn't identify Mr. Wragg until three days later." [1]
Then later, counsel directly asked how the child's mistake might influence the juror's determination of defendant's guilt.
"DEFENSE COUNSEL: But, if through the cross-examination of her you have a reasonable doubt as to accuracy of her identification, how would you vote?
PROSPECTIVE JUROR 13: She didn't actually think he did it?
DEFENSE COUNSEL: If you don't believe her, not just that you don't believe her, but you believe she could be mistaken, when she points to Willie, how would you vote?" 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 pm. 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 am, 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 "no reason not to believe [her]"; used the terms "bogus," "bologna," and "poppycock" when describing the theory of the defense; that she "loved" 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 an eleven-year old female family member, 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 5 years of post-release supervision, the maximum sentence allowed by law.
The Appellate Division affirmed (
[4th Dept 2014]), and a Judge of this Court granted leave to
appeal (
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
NY2d 708, 712 [1998]). In making that assessment, the court
must view counsel's performance in its totality (see People
v Baldi,
Defendant argues that where the sole defense was the child's misidentification there is no tactical advantage to revealing that MH in fact recognized defendant before trial, or in permitting the prosecutor, in turn, and without objection, to remind the jury that MH previously identified defendant as the assailant. We disagree.
As the record establishes, during the voir dire counsel asked questions to elicit whether prospective jurors were open to the possibility that the child made an honest mistake about who touched her. This was a critical line of inquiry because the prospective jurors initially appeared hesitant to accept that a child would lie about being sexually assaulted, but appeared open to the suggestion that MH could have innocently identified the wrong person as her assailant. By using the information to question prospective jurors about their reactions to the child's identification of defendant some time after the assault rather than on the same day, a fact repeated by the prosecutor without objection, counsel sought to ensure selection of jurors receptive to his mistaken identification defense and his arguments about the existence of reasonable doubt of defendant's guilt based on the child's error. Given that the defense hinged on the jurors' belief that the child was mistaken about defendant, and that the prospective jurors were inclined to believe the child, sight unseen, we cannot say that counsel failed to employ a legitimate trial strategy by putting in question MH's identification at the earliest possible opportunity.
Defendant also claims that counsel was ineffective
for failing to object when one of the investigators
testified that MH gave him a description of the assailant.
According to defendant, this testimony inferentially
bolstered MH's in-court identification. However, as with
counsel's questions to the prospective jurors, the
investigator's testimony that MH identified defendant almost
three weeks after the assault, supported counsel's argument
that MH made an honest, even understandable, mistake given
the lapse of time (see People v Brown,
Defendant's other complaint that counsel was
ineffective for failing to object to a pattern of prosecutorial misconduct is similarly without merit. First, we note that this is not a case where defense counsel remained silent while the prosecutor exceeded the limits of acceptable argument. Counsel lodged several objections, which the court sustained. Second, while the People concede that some of the prosecutor's summation remarks were inappropriate, they correctly argue that the remarks were not so egregious that counsel's failure to object renders his overall representation constitutionally defective.
Here, the prosecutor used terms of endearment for the child and argued that the jury should believe the child's testimony that she was molested. Those comments, focused as they were on the attack rather than on the propriety of the child's identification of defendant, did not detract from the theory of the defense that days and weeks after the event the child made the honest mistake of picking the wrong person as her attacker.
To the extent defendant complains about the
prosecutor's other remarks, we cannot say on this record
that counsel's failure to object exposed the jury to the
type of prosecutorial abuse this Court has previously held
to warrant reversal of the conviction. For example, the
remarks are not similar to the prosecutor's statements in
People v Wright (
Defendant further contends that counsel was
ineffective for failing to object when at various points the prosecutor injected her credibility into the trial, essentially serving as an unsworn witness for the People. However, the record fails to support this characterization of the prosecutor's conduct and defendant's other complaints about the prosecutor's trial conduct are similarly unpersuasive.
Defendant's final claim concerning counsel's use
of the alibi witnesses and his cross-examination of MH is
groundless. First, counsel cannot be held ineffective
because the People impeached the albi witnesses when they
were caught in a lie (see People v Rose,
Second, defense counsel did not err by attempting to impeach
the complainant and sole eyewitness by pointing to
discrepancies between her trial and grand jury testimonies,
even if counsel was unsuccessful in his efforts to do so
(see Benevento,
Viewing counsel's representation in its totality,
defendant received effective assistance of counsel under our
state standard (see Baldi,
Turning to defendant's alternative request for
relief, defendant argues that if his conviction stands, he
should be resentenced because the People failed to file a
predicate felony conviction statement prior to the
commencement of trial, as provided in
However, this argument relies on a misinterpretation of the applicable statutes, and is no basis to mandate that defendant be resentenced.
"[w]hen information available to the people prior to the trial of a felony offense for a sexual assault against a child indicates that
the defendant may have previously been
subjected to a predicate felony conviction
for a sexual assault against a child, a
statement may be filed by the prosecutor at
any time before trial commences..."
(
The defendant must be given a copy of the statement and an
opportunity to controvert allegations contained therein (
It is apparent from the statutory text that
convicted second child sexual assault felony offenders must
be sentenced under
This interpretation ignores the text of
We further note that because
This interpretation of
Accordingly, the order of the Appellate Division should be affirmed.
* * * * * * * * * * * * * * * * Order affirmed. Opinion by Judge Rivera. Chief Judge Lippman and Judges Pigott, Abdus-Salaam and Stein concur. Judge Fahey took no part. Decided November 19, 2015
[1] In fact, as noted during the prosecutor's voir dire questions, MH did not identify the defendant until three weeks after she was attacked.
Notes
[2] We have no occasion to consider the