| People v Tuszynski |
| 2010 NY Slip Op 02206 [71 AD3d 1407] |
| March 19, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v David F.Tuszynski, Appellant. |
—[*1] R. Michael Tantillo, District Attorney, Canandaigua (Jeffrey L. Taylor of counsel), forrespondent.
Appeal from a judgment of the Ontario County Court (Thomas M. Van Strydonck, J.),rendered January 28, 2008. The judgment convicted defendant, upon a nonjury verdict, ofcriminal sexual act in the second degree (40 counts), incest (52 counts), rape in the seconddegree (12 counts) 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 following a nonjury trialof, inter alia, 40 counts of criminal sexual act in the second degree (Penal Law § 130.45[1]). Defendant failed to preserve for our review his contention that he was denied a fair trial byprosecutorial misconduct based on the prosecutor's use at trial of an audiotape that had beensuppressed (see CPL 470.05 [2]). In any event, that contention is without merit because," '[i]n this nonjury case, [County Court] is presumed to have considered only competentevidence in reaching the verdict' " (People v Carney, 41 AD3d 1239, 1240 [2007], lv denied 9NY3d 873 [2007]). We reject the further contention of defendant that he was denied effectiveassistance of counsel (see generally People v Baldi, 54 NY2d 137, 147 [1981]; People v Lewis, 67 AD3d 1396[2009]; People v Maryon, 20 AD3d911, 912-913 [2005], lv denied 5 NY3d 854 [2005]).
Contrary to the contention of defendant, the court properly denied that part of his omnibusmotion seeking to dismiss the indictment based on the prosecutor's references to the audiotape inthe grand jury proceeding. "[T]he submission of some inadmissible evidence [to the grand jury]will be deemed fatal only when the remaining evidence is insufficient to sustain the indictment"(People v Huston, 88 NY2d 400, 409 [1996]) and, here, the remaining evidence waslegally sufficient to support the indictment. Defendant's contentions that the counts of theindictment are duplicitous and that the "vast majority" of the counts of the indictment aremultiplicitous are not preserved for our review (see People v Sponburgh, 61 AD3d 1415 [2009], lv denied12 NY3d 929 [2009]), and we decline to exercise our power to review those contentions as amatter of discretion in the interest of justice (see CPL 470.15 [6] [a]).
We reject defendant's contention that the conviction is not supported by legally sufficientevidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Viewing theevidence in light of the elements of the crimes in this nonjury trial (see People v Danielson, 9 NY3d342, 349 [2007]), we [*2]conclude that the verdict is notagainst the weight of the evidence (see generally Bleakley, 69 NY2d at 495). Finally, wehave reviewed defendant's remaining contention and conclude that it lacks merit.Present—Scudder, P.J., Smith, Fahey and Lindley, JJ.