Opinion
2013-12-27
The PEOPLE of the State of New York, Respondent, v. Michael WILSON, Defendant–Appellant.
Frank H. Hiscock Legal Aid Society, Syracuse (Christine M. Cook of counsel), for Defendant–Appellant. William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel), for Respondent.
Frank H. Hiscock Legal Aid Society, Syracuse (Christine M. Cook of counsel), for Defendant–Appellant. William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel), for Respondent.
PRESENT: SCUDDER, P.J., CENTRA, LINDLEY, SCONIERS AND VALENTINO, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him, upon a jury verdict, of predatory sexual assault against a child (Penal Law § 130.96), rape in the first degree (§ 130.35[1] ), and endangering the welfare of a child (§ 260.10[1] ). We reject defendant's contention that County Court abused its discretion or denied him his constitutional right to present a defense in precluding the alibi testimony of a defense witness inasmuch as defendant failed to file a notice of alibi pursuant to CPL 250.20 ( see People v. Watson, 269 A.D.2d 755, 756, 704 N.Y.S.2d 396, lv. denied95 N.Y.2d 806, 711 N.Y.S.2d 174, 733 N.E.2d 246). Defendant failed to preserve for our review his further contention that he was denied his constitutional right to present a defense by the court's preclusion of the non-alibi testimony of that defense witness ( see People v. Lane, 7 N.Y.3d 888, 889, 826 N.Y.S.2d 599, 860 N.E.2d 61; People v. Baxter, 108 A.D.3d 1158, 1160, 969 N.Y.S.2d 678), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice ( seeCPL 470.15[6] [a] ).
Defendant failed to preserve for our review his contention that the court erred in instructing the jury that his wife and daughter were interested witnesses as a matter of law ( seeCPL 470.05[2] ). In any event, although we agree with him that the court erred in giving that instruction ( see People v. Fuentes, 52 A.D.3d 1297, 1299, 859 N.Y.S.2d 841, lv. denied11 N.Y.3d 736, 864 N.Y.S.2d 395, 894 N.E.2d 659), we conclude that the error is harmless ( see id.; see generally People v. Crimmins, 36 N.Y.2d 230, 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787). Contrary to defendant's further contention, “there is no evidence in the record indicating an abuse of discretion by the court in denying the motion[s] for substitution of counsel where[, as here, the] defendant failed to proffer specific allegations of a ‘seemingly serious request’ that would require the court to engage in a minimal inquiry” (People v. Porto, 16 N.Y.3d 93, 100, 917 N.Y.S.2d 74, 942 N.E.2d 283; see People v. Beriguette, 84 N.Y.2d 978, 980, 622 N.Y.S.2d 497, 646 N.E.2d 799, rearg. denied85 N.Y.2d 924, 627 N.Y.S.2d 326, 650 N.E.2d 1328; People v. Davis, 99 A.D.3d 1228, 1229, 951 N.Y.S.2d 808, lv. denied20 N.Y.3d 1010, 960 N.Y.S.2d 353, 984 N.E.2d 328).
We reject defendant's contention that he was denied effective assistance of counsel. Defense counsel's failure to file a notice of alibi and failure to object to the improper jury instruction concerning defendant's wife and daughter did not render her representation less than meaningful ( see generally People v. Benevento, 91 N.Y.2d 708, 712–713, 674 N.Y.S.2d 629, 697 N.E.2d 584). To the extent that defendant contends that he was denied effective assistance of counsel by defense counsel's failure to object to the court's rulings with respect to two proposed defense witnesses, as well as her failure to make a closing argument at the end of the suppression hearing, that contention is without merit. Defendant failed to demonstrate that those objections and that closing argument, if made, would have been successful ( see People v. Stultz, 2 N.Y.3d 277, 287, 778 N.Y.S.2d 431, 810 N.E.2d 883; People v. Noguel, 93 A.D.3d 1319, 1320, 940 N.Y.S.2d 756, lv. denied19 N.Y.3d 965, 950 N.Y.S.2d 117, 973 N.E.2d 215). Finally, we conclude that the sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.