Opinion
2012-12-21
The PEOPLE of The State of New York, Respondent, v. Mark A. YOUNGS, Defendant–Appellant.
Kathleen P. Reardon, Rochester, for Defendant–Appellant. Brooks T. Baker, District Attorney, Bath (Amanda M. Chafee of Counsel), for Respondent.
Kathleen P. Reardon, Rochester, for Defendant–Appellant. Brooks T. Baker, District Attorney, Bath (Amanda M. Chafee of Counsel), for Respondent.
PRESENT: FAHEY, J.P., PERADOTTO, CARNI, WHALEN, AND MARTOCHE, JJ.
MEMORANDUM:
On appeal from a judgment convicting him, following a nonjury trial, of rape in the first degree (Penal Law § 130.35[3] ) and endangering the welfare of a child (§ 260.10[1] ), defendant contends that he was denied effective assistance of counsel as a result of defense counsel's failure to make a motion to dismiss the indictment based on the denial of his statutory right to a speedy trial ( seeCPL 30.30[1][a] ). The record on appeal is inadequate to enable us to determine whether such a motion would have been successful and whether defense counsel's failure to make that motion deprived defendant of meaningful representation ( see People v. Obert, 1 A.D.3d 631, 632, 766 N.Y.S.2d 264,lv. denied2 N.Y.3d 764, 778 N.Y.S.2d 782, 811 N.E.2d 44), and thus defendant's contention is appropriately raised by way of a motion pursuant to CPL article 440 ( see id.; see also People v. Oliver, 24 A.D.3d 1305, 1305, 805 N.Y.S.2d 874,lv. denied6 N.Y.3d 836, 814 N.Y.S.2d 85, 847 N.E.2d 382). To the extent that we reached a contrary result in People v. Manning, 52 A.D.3d 1295, 861 N.Y.S.2d 873, that case is no longer to be followed.
Defendant asserts that certain exhibits admitted in evidence at trial, i.e., photographs, could not be located for purposes of this appeal, thereby precluding meaningful appellate review. Those exhibits, however, were provided to us upon our request and thus defendant's contention is moot. We reject defendant's contention that New York lacked criminal jurisdiction ( seeCPL 20.20). Preliminarily, we note that preservation of that contention is not required ( see People v. Carvajal, 6 N.Y.3d 305, 311–312, 812 N.Y.S.2d 395, 845 N.E.2d 1225).We nevertheless conclude that the People provided enough evidence to establish that “the alleged conduct or some consequence of it must have occurred within the State” ( People v. McLaughlin, 80 N.Y.2d 466, 471, 591 N.Y.S.2d 966, 606 N.E.2d 1357).
Defendant's contention that the evidence is legally insufficient to support the conviction of rape is not preserved for our review because defendant failed to renew his motion for a trial order of dismissal after presenting proof ( see People v. Hines, 97 N.Y.2d 56, 61, 736 N.Y.S.2d 643, 762 N.E.2d 329,rearg. denied 97 N.Y.2d 678, 738 N.Y.S.2d 292, 764 N.E.2d 396). Viewing the evidence in light of the elements of the crimes in this nonjury trial ( see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we conclude that the verdict is not against the weight of the evidence ( see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Defendant's contention that the search warrant was stale is not preserved for our review ( see People v. Martinez, 39 A.D.3d 1246, 1246–1247, 834 N.Y.S.2d 599,lv. denied9 N.Y.3d 878, 842 N.Y.S.2d 790, 874 N.E.2d 757). Likewise, defendant failed to preserve for our review his contention that County Court erred in refusing to consider lesser included offenses ( see People v. Buckley, 75 N.Y.2d 843, 846, 552 N.Y.S.2d 912, 552 N.E.2d 160). We decline to exercise our power to review those contentions as a matter of discretion in the interest of justice ( seeCPL 470.15[6][a] ). 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.