| People v Davis |
| 2011 NY Slip Op 03081 [83 AD3d 860] |
| April 12, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v William Davis, Appellant. |
—[*1] Janet DiFiore, District Attorney, White Plains, N.Y. (Valerie A. Livingston, RichardLongworth Hecht, Anthony J. Servino, and Lois Cullen Valerio of counsel), forrespondent.
Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Adler,J.), rendered March 27, 2008, convicting him of predatory sexual assault (four counts), predatorysexual assault against a child (four counts), kidnapping in the second degree, criminalimpersonation in the first degree, sexual abuse in the first degree (two counts), sexual abuse inthe second degree (two counts), and endangering the welfare of a child, upon a jury verdict, andimposing sentence.
Ordered that the judgment is affirmed.
The defendant's claim of ineffective assistance of counsel, to the extent that it is premised onhis attorney's alleged failure to investigate and call potential alibi witnesses, involves matterwhich is dehors the record and is not properly presented on direct appeal (see People v Haynes, 39 AD3d562, 564 [2007]; People v Zimmerman, 309 AD2d 824 [2003]). The recordotherwise fails to support the defendant's claim of ineffective assistance inasmuch as itdemonstrates that trial counsel rendered meaningful representation to the defendant at all stagesof the proceedings (see People v Ellis, 81 NY2d 854, 856 [1993]; People v Baldi,54 NY2d 137, 147 [1981]).
"Contrary to the defendant's contention, '[s]ince the case against [him] consisted of bothdirect and circumstantial evidence,' he was not entitled to a circumstantial evidence charge" (People v Garson, 69 AD3d 650,651 [2010], quoting People vWashington, 45 AD3d 880, 880 [2007]). In addition, the defendant waived appellatereview of his argument that the Supreme Court erred in discharging a seated juror, Kathleen B.(see People v Colon, 90 NY2d 824 [1997]).
Contrary to the contention raised in point two of the defendant's pro se supplemental brief,the evidence demonstrated that the defendant validly waived his Miranda rights (seeMiranda v Arizona, 384 US 436 [1966]; People v Osorio, 49 AD3d 562 [2008]). Furthermore, thephotographic array from which the complainant identified the defendant was not undulysuggestive (see People v Miller, 33AD3d 728 [2006]).[*2]
The defendant's contentions raised in point one of hismain brief regarding the failure to excuse juror William W., and point one and point five of hispro se supplemental brief regarding the alleged denial of his right to an impartial jury, areunpreserved for appellate review and, in any event, without merit. The defendant's remainingcontentions, raised in point two of his main brief and points three and six of his pro sesupplemental brief, are without merit. Covello, J.P., Eng, Hall and Roman, JJ., concur.