| People v Procanick |
| 2009 NY Slip Op 09857 [68 AD3d 1756] |
| December 30, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v William M.Procanick, Appellant. |
—[*1] Scott D. McNamara, District Attorney, Utica (Matthew P. Worth of counsel), forrespondent.
Appeal from a judgment of the Oneida County Court (Michael L. Dwyer, J.), renderedFebruary 29, 2008. The judgment convicted defendant, upon a jury verdict, of sexual abuse inthe first 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 ofsexual abuse in the first degree (Penal Law § 130.65 [3]) and endangering the welfare of achild (§ 260.10 [1]). We reject the contention of defendant that he was denied his right topresent a defense when County Court precluded him from presenting character evidence. In hisoffer of proof, defendant failed to demonstrate that the evidence related to a character trait thatwas relevant to the charges (see Peoplev Spicola, 61 AD3d 1434, 1435 [2009]; see generally People v Greany, 185AD2d 376, 376-377 [1992], lv denied 80 NY2d 1027 [1992]). Defendant failed topreserve for our review his challenge to the legal sufficiency of the evidence (see People vGray, 86 NY2d 10, 19 [1995]). Viewing the evidence in light of the elements of the crimesas charged to the jury (see People vDanielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict is not against theweight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]).Defendant further contends that reversal is required based upon prosecutorial misconduct. Withrespect to the single instance of alleged misconduct that is preserved for our review, we concludethat " 'the conduct of the prosecutor was not so egregious or prejudicial as to deny defendant hisright to a fair trial' " (People vMastowski, 26 AD3d 744, 746 [2006], lv denied 6 NY3d 850 [2006], 7 NY3d815 [2006]). We decline to exercise our power to review defendant's contention with respect tothe remaining instances of alleged misconduct as a matter of discretion in the interest of justice(see CPL 470.15 [6] [a]). "Contrary to defendant's further contention, neither defensecounsel's failure to object to the alleged instances of prosecutorial misconduct nor any of defensecounsel's other alleged shortcomings constituted ineffective assistance of counsel" (People v McCray, 66 AD3d 1338,1339 [2009]). Finally, the sentence is not unduly harsh or severe. Present—Centra, J.P.,Peradotto, Green and Pine, JJ.