This opinion is uncorrected and subject to revision before

publication in the New York Reports.

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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

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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 CPLR 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 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

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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. 

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. 

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"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

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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

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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

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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 (115 AD3d 1281

[4th Dept 2014]), and a Judge of this Court granted leave to

appeal (23 NY3d 1070 [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

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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, 54 NY2d 137, 147 [1981]). Defendant, of course,

bears the burden of establishing his claim that counsel's

performance is constitutionally deficient (People v Barboni,

21 NY3d 393, 406 [2013]). Thus, defendant must demonstrate

the absence of strategic or other legitimate explanations

for counsel's alleged failure (People v Satterfield, 66 NY2d

796, 799-800 [1985]. However, a reviewing court must be

careful not to "second-guess" counsel, or assess counsel's

performance "with the clarity of hindsight," effectively

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substituting its own judgment of the best approach to a

given case (Benevento, 91 NY2d at 712; see also Satterfield,

66 NY2d at 799-800 ["It is not for this court to secondguess whether a course chosen by defendant's counsel was the

best trial strategy, or even a good one, so long as

defendant was afforded meaningful representation"]). 

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

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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, 17 NY3d 742, 744

[2011] [no error where counsel failed to object to remarks

by prosecutor impugning defendant because they were

consistent with counsel's theory of the case]). Moreover,

the tactic benefitted from testimony by MH's friend that MH

identified someone other than the defendant within a short

span of time after the incident. That the strategy

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ultimately failed does not make counsel's representation

ineffective (see People v Benn, 68 NY2d 941, 942 [1986]

[ineffective assistance of counsel "requires proof of true

ineffectiveness rather than mere disagreement with

strategies and tactics that failed"]; see also People v

Lester, 124 AD2d 1052, 1053 [4th Dept 1986][counsel engaged

in a reasonable strategy to "cast doubt upon the reliability

of the eyewitnesses' in-court identification" by

"attempt[ing] to show that the in-court identification was

influenced by an impermissibly suggestive photo array and

lineup"]).

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

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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 (25 NY3d 769 [2015]), People v Fisher (18

NY3d 964 [2012]), or People v Ashwal (39 NY2d 105 [1976]). 

In those cases the prosecutor, during summation, exceeded

the bounds of proper conduct by making misleading

representations about physical evidence, encouraging

inferences of guilt based on facts not in evidence, and

improperly conveying guilt in uncharged crimes (see Wright,

25 NY3d at 780-81 [prosecutor incorrectly stated in her

summation that defendant had left DNA evidence at the crime

scene, when a DNA analysis indicated there was no match];

Fisher, 18 NY3d at 966-67 [prosecutor's summation was

improper where she relied on facts not in evidence, her

"less then frank" statement that a witness was not

receiving a benefit for testifying, and an admonishment to

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jury that "their acceptance of the testimony of the child

witnesses was essential to the administration of justice"];

Ashwal, 39 NY2d at 110 [prosecutor improperly conveyed the

impression that defendant had killed informant to prevent

him from testifying in defendant's current trial for drug

possession]). Here, the prosecutor's summation rhetoric

does not equate, as in the cases above, to the type of

conduct that we have previously held denied the defendant a

fair trial.

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, 57 NY2d 837, 839

[1982]["Defense counsel's reliance on the testimony of a

witness whose credibility was subsequently impeached on

cross-examination may have been an inadvisable trial tactic,

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but it did not constitute ineffective assistance"]).

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, 91 NY2d at 712-13 ["As long as the defense

reflects a reasonable and legitimate strategy under the

circumstances and evidence presented, even if unsuccessful,

it will not fall to the level of ineffective assistance"]).

Viewing counsel's representation in its totality,

defendant received effective assistance of counsel under our

state standard (see Baldi, 54 NY2d at 147). Since "our

state standard ...offers greater protection than the federal

test, we necessarily reject defendant's federal

constitutional challenge by determining that he was not

denied meaningful representation under the State

Constitution" (People v Caban, 5 NY3d 143, 156 [2005]). 

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 CPL 400.19 (2). On

this appeal, defendant does not dispute that he has a

predicate felony conviction for a sexual assault against a

child based on his January 2000, first degree rape

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conviction. As such, this conviction makes him subject to

sentencing enhancement under Penal Law § 70.07. Nor does he

contend that the court imposed an incarcetory period outside

the statutory sentencing range for his current conviction. 

Instead, he claims that the People exercised their

discretion to avoid an enhanced sentence in his case. 

However, this argument relies on a misinterpretation of the

applicable statutes, and is no basis to mandate that

defendant be resentenced.

Penal Law § 70.07(1) provides that "[a] person who

stands convicted of a felony offense for a sexual assault

against a child, having been subjected to a predicate felony

conviction for a sexual assault against a child, must be

sentenced in accordance with" a statutorily specified

enhanced sentencing range. The governing procedures for

determining whether a defendant is subject to a predicate

felony conviction for purposes of Penal Law § 70.07 are

specified in CPL 400.19 (see Penal Law § 70.07[3]).2

Pursuant to CPL 400.19 (2), 

"[w]hen information available to the people

prior to the trial of a felony offense for a

sexual assault against a child indicates that

2 We have no occasion to consider the CPL 400.19 procedures

as they apply to the statutorily required determination of

whether an offender was eighteen years or older at the time of

the commission of the predicate offense because defendant's age,

as it relates to the prior felony, is not at issue on this

appeal.

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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..."

(CPL 400.19[2]).

The defendant must be given a copy of the statement and an

opportunity to controvert allegations contained therein (CPL

400.19 [3]). Any allegations not controverted "shall be

deemed to have been admitted by the defendant" (id.). Where

the defendant controverts an allegation, the statute

requires the court hold a hearing and make a finding as to

whether the defendant has been subjected to a predicate

felony conviction within the meaning of Penal Law § 70.07

(see CPL 400.19 [6]). These procedures ensure that a

defendant has appropriate notice and opportunity to

challenge allegations of the existence of a sentenceenhancing predicate conviction (cf. People v Bouyea, 64 NY2d

1140, 1142 [1985] [the statutory purpose for filing a

predicate statement in second felony offender cases, which

contain procedures under CPL 400.21 that are sufficiently

similar to the notice and hearing requirements in CPL

400.19, includes "providing defendant with reasonable notice

and an opportunity to be heard"]).

It is apparent from the statutory text that

convicted second child sexual assault felony offenders must

be sentenced under Penal Law § 70.07. Nevertheless,

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defendant contends that because CPL 400.19 (2) states the

People's predicate "statement may be filed by the prosecutor

at anytime before trial commences" the legislature intended

to give the People discretion to avoid enhanced sentencing

under Penal Law § 70.07 for this category of defendants. He

argues that this interpretation of the statute follows

logically, given that all the other predicate sentencing

statutes, except for those applicable to persistent child

sexual offenders, mandate enhanced sentences, and the CPL

sections setting forth the corresponding procedures for

determining predicate convictions under those statutes

require that the prosecutor must file the statement before

sentencing (see CPL 400.15 ["Procedure for Determining

Whether Defendant is a Second Violent Felony Offender"]; CPL

400.16 ["Procedure for Determining Whether Defendant is a

Persistent Violent Felony Offender"]; CPL 400.21 ["Procedure

for Determining Whether Defendant is a Second Felony

Offender or a Second Felony Drug Offender"]). According to

defendant, the legislative choice to use "may" in CPL 400.19

was intended to give prosecutors discretion to seek enhanced

sentencing only when the prosecutor exercised this

discretion prior to trial.

This interpretation ignores the text of Penal Law

§ 70.07 which contains no limiting language in its

sentencing provisions. The explicit language in section one

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states that a person convicted of a felony offense for

sexual assault against a child, who has a predicate felony

conviction for child sexual assault, "must be sentenced" in

accordance with Penal Law § 70.07 sentencing provisions. 

The applicable time for invoking the procedures contained in

CPL 400.19 does not change the import of the mandatory

language in Penal Law § 70.07, which subjects this category

of offenders to legislatively promulgated enhanced

sentences. Furthermore, the specific language in CPL 400.19

(2) upon which defendant relies merely permits filing of the

statement before commencement of a trial. It does not

prohibit filing afterwards, and before sentencing. As

courts have concluded, "may" does not mean "must" (see

People v Armbruster, 32 AD3d 1348 [4th Dept 2006]; People v

Spruill, NYLJ 2/15/02, vol 227, No. 31 [Crim Ct, New York

County]). Notwithstanding defendant's requests that we read

the statute otherwise, this Court is without authority to

read mandatory language into a statute where it is otherwise

absent (Statutes Law § 94 [McKinney]; Lederer v Wise Shoe

Co., 276 NY 459, 465 [1938] ["We do not by implication read

into a clause of a rule or statute a limitation for which we

find no sound reason and which would render the clause

futile."]).

We further note that because Penal Law § 70.07, on

its face, applies to persons once convicted of a felony

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offense for a sexual assault against a child, CPL 400.19 (2)

provides a mechanism for filing the statement before

conviction. By allowing for filing at a time when any

challenges to the underlying predicate offense can be

resolved by the court before trial, this provision serves

the additional purpose of facilitating plea negotiation by

confirming defendant's sentencing exposure should he be

convicted. Furthermore, and as a consequence, this

provision, similar to other statutes, has the added benefit

of potentially sparing child victims the stress of reliving

the sexual assault by the retelling of the events in a

courtroom (see generally Matter of Joanne P., 144 Misc 2d

754, 756 n2 [Fam Ct 1989] [explaining that Article 10

proceedings were "designed to avoid the necessity of the

child having to testify in court as to abuse due to the

obvious trauma that often accompanies such testimony"]).

This interpretation of Penal Law § 70.07 and CPL

400.19 is fully supported by the legislative history which

establishes that the enhanced sentencing laws were intended

to increase penalties against sex offenders to better

protect the public, and to address recidivism (see New York

Bill Jacket 2000 823b Chp 1 pg. 4 [to "[e]nact[] a provision

for repeat child molesters who commit particularly serious

sexual assaults against children and requires that they

receive enhanced penalties, including mandatory

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sentences"]). Defendant's interpretation, however, would

mandate enhanced sentencing for every sex offender except 

those whose victims are children. Certainly the

legislature, concerned with public safety and punishment of

repeat offenders, would not grant discretion to prosecutors

to avoid higher sentences for perpetrators of sex crimes

against a particularly vulnerable class of victims.

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

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