| People v Dye |
| 2010 NY Slip Op 08289 [78 AD3d 1607] |
| November 12, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Marvin Dye Jr.,Appellant. |
—[*1] Frank A. Sedita, III, Special Prosecutor, Buffalo (Shawn Hennessy of counsel), forrespondent.
Appeal from a judgment of the Niagara County Court (Peter L. Broderick, Sr., J.), renderedOctober 14, 2004. The judgment convicted defendant, upon a jury verdict, of rape in the first degree(two counts), unlawful imprisonment in the second degree (two counts) and sexual abuse in the firstdegree.
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 twocounts each of rape in the first degree (Penal Law § 130.35 [1], [4]) and unlawful imprisonmentin the second degree (§ 135.05), and one count of sexual abuse in the first degree (§130.65 [1]). Contrary to defendant's contention, the evidence is legally sufficient to support theconviction of two counts of unlawful imprisonment (see generally People v Bleakley, 69 NY2d490, 495 [1987]). Defendant failed to preserve for our review his contention that the conviction of twocounts of rape and one count of sexual abuse is not supported by legally sufficient evidence because hemade only a general motion for a trial order of dismissal with respect to those counts (see People v Hawkins, 11 NY3d 484,492 [2008]; People v Gray, 86 NY2d 10, 19 [1995]). Furthermore, viewing the evidence inlight of the elements of the crimes of which defendant was convicted, as charged to the jury (see People v Danielson, 9 NY3d 342,349 [2007]), we conclude that the verdict is not against the weight of the evidence (see generallyBleakley, 69 NY2d at 495).
Contrary to the further contentions of defendant, we conclude that County Court did not abuse itsdiscretion in denying his request for a missing witness charge (see generally People v Savinon,100 NY2d 192, 196-197 [2003]; People v Gonzalez, 68 NY2d 424, 427-428 [1986]), andin refusing to allow defendant "to 'introduce extrinsic evidence on a collateral matter solely to impeachcredibility' " by presenting the testimony of a proposed defense witness (People v Simmons, 21 AD3d 1275[2005], lv denied 6 NY3d 781 [2006], quoting People v Alvino, 71 NY2d 233, 247[1987]). The record is insufficient to enable us to review the contention of defendant that he was deniedhis right to counsel (see People v Kinchen, 60 NY2d 772, 773-774 [1983]; People vBrown, 286 AD2d 960, 961 [2001], lv denied 97 NY2d 679 [2001]), [*2]and thus the proper procedural vehicle for raising that contention is byway of a motion pursuant to CPL article 440 (see People v Larrabee, 201 AD2d 924 [1994],lv denied 83 NY2d 855 [1994]). Defendant did not preserve for our review his contention thatan instruction delivered by the court during jury selection deprived him of his rights to due process anda fair trial (see CPL 470.05 [2]), and we decline to exercise our power to address thatcontention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). Finally,the sentence is not unduly harsh or severe. Present—Smith, J.P., Fahey, Lindley, Sconiers andGorski, JJ.