SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1256 

KA 12-02263 

PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, NEMOYER, AND SCUDDER, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

ZACHARY STRAUSS, DEFENDANT-APPELLANT. 

PETER J. DIGIORGIO, JR., UTICA, FOR DEFENDANT-APPELLANT.

SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF

COUNSEL), FOR RESPONDENT. 

 

Appeal from a judgment of the Oneida County Court (Michael L.

Dwyer, J.), rendered January 30, 2012. The judgment convicted

defendant, upon a jury verdict, of rape in the first 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 rape in the first degree (Penal Law § 130.35 [1]),

defendant contends that the verdict is against the weight of the

evidence on the issue of forcible compulsion. Viewing the evidence in

light of the elements of the crime as charged to the jury (see People

v Danielson, 9 NY3d 342, 349), we conclude that the verdict is not

against the weight of the evidence (see People v Black, 137 AD3d 1679,

1680, lv denied 27 NY3d 1128; see generally People v Bleakley, 69 NY2d

490, 495).

Defendant’s contention that the People improperly failed to seek

an advance ruling concerning the admissibility of evidence of

defendant’s involvement in a drug transaction and threats to commit

suicide is not preserved for our review (see People v Thomas, 226 AD2d

1071, 1071-1072, lv denied 88 NY2d 995; People v Clark, 203 AD2d 935,

936, lv denied 83 NY2d 965). Likewise, defendant’s challenge to the

admissibility of an unredacted videotape of his interview with the

police is not preserved for our review (see CPL 470.05 [2]). We

decline to exercise our power to review those contentions as a matter

of discretion in the interest of justice (see CPL 470.15 [6] [a]).

Defendant also failed to preserve for our review his contention

that the verdict is inconsistent insofar as the jury found defendant

guilty of rape in the first degree but not guilty of unlawful

imprisonment in the second degree. Defendant failed to object to the

verdict before the jurors were discharged (see People v Alfaro, 66
-2- 1256 

KA 12-02263 

NY2d 985, 987; People v Brooks, 139 AD3d 1391, 1392). In any event,

viewing the elements of those two crimes as charged to the jury

without regard to the accuracy of those instructions (see People v

DeLee, 24 NY3d 603, 608; People v Tucker, 55 NY2d 1, 7-8, rearg denied

55 NY2d 1039), we conclude that there is no inconsistency in the

verdict because an acquittal on the charge of unlawful imprisonment in

the second degree is not “conclusive as to a necessary element” of

rape in the first degree (Tucker, 55 NY2d at 7; see generally People v

Barfield, 138 AD2d 497, 497, lv denied 71 NY2d 1023).

Defendant did not preserve for our review his contention that he

was deprived of a fair trial by prosecutorial misconduct on summation

(see People v Symonds, 140 AD3d 1685, 1685, lv denied 28 NY3d 937). 

In any event, we conclude that the prosecutor’s remarks constituted

fair comment upon the evidence or fair response to the summation of

defense counsel (see People v Jackson, 141 AD3d 1095, 1096; see also

People v Lyon, 77 AD3d 1338, 1339, lv denied 15 NY3d 954).

Finally, we reject defendant’s contention that he was denied

effective assistance of counsel. “There 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).

Entered: February 3, 2017 Frances E. Cafarell

Clerk of the Court