| People v Vogel |
| 2009 NY Slip Op 06925 [66 AD3d 1367] |
| October 2, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Harry Vogel,Appellant. |
—[*1] John H. Crandall, District Attorney, Herkimer (Jacquelyn M. Asnoe of counsel), forrespondent.
Appeal from a judgment of the Herkimer County Court (Patrick L. Kirk, J.), rendered July10, 2007. The judgment convicted defendant, upon a jury verdict, of rape in the second degree(13 counts), sexual abuse in the second degree and endangering the welfare of a child.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of 13counts of rape in the second degree (Penal Law § 130.30 [1]) and one count each of sexualabuse in the second degree (§ 130.60 [2]) and endangering the welfare of a child (§260.10 [1]). County Court properly excluded evidence, under the rape shield law (CPL 60.42),concerning the victim's purchase or use of a home pregnancy test inasmuch as defendant failed tomake "a threshold showing of relevance" with respect to that evidence (People vWilliams, 81 NY2d 303, 314 [1993]; see People v Perryman, 178 AD2d 916, 917[1991], lv denied 79 NY2d 1005 [1992]). The court also properly refused to allowdefendant to present the alibi testimony of two witnesses. Defendant failed to file a timely noticeof alibi (see CPL 250.20 [1]), or to offer a reasonable excuse for that failure (seePeople v Watson, 269 AD2d 755, 756 [2000], lv denied 95 NY2d 806 [2000];People v Bembry, 258 AD2d 921 [1999], lv denied 93 NY2d 897 [1999]).Furthermore, on the record before us, we reject defendant's contention that defense counsel'sfailure to file a timely notice of alibi constituted ineffective assistance of counsel (see People v Djanie, 31 AD3d887, 888 [2006], lv denied 7 NY3d 866 [2006]). Finally, the sentence is not undulyharsh or severe. Present—Martoche, J.P., Smith, Peradotto, Carni and Green, JJ.