| People v Youngs |
| 2012 NY Slip Op 08872 [101 AD3d 1589] |
| December 21, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Mark A.Youngs, Appellant. |
—[*1] Brooks T. Baker, District Attorney, Bath (Amanda M. Chafee of counsel), forrespondent.
Appeal from a judgment of the Steuben County Court (Peter C. Bradstreet, J.), rendered June27, 2011. The judgment convicted defendant, upon a nonjury verdict, of rape in the first degreeand endangering the welfare of a child.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him, following a nonjury trial, of rapein the first degree (Penal Law § 130.35 [3]) and endangering the welfare of a child(§ 260.10 [1]), defendant contends that he was denied effective assistance of counsel as aresult of defense counsel's failure to make a motion to dismiss the indictment based on the denialof his statutory right to a speedy trial (see CPL 30.30 [1] [a]). The record on appeal isinadequate to enable us to determine whether such a motion would have been successful andwhether defense counsel's failure to make that motion deprived defendant of meaningfulrepresentation (see People v Obert,1 AD3d 631, 632 [2003], lv denied 2 NY3d 764 [2004]), and thus defendant'scontention is appropriately raised by way of a motion pursuant to CPL article 440 (seeid.; see also People v Oliver, 24AD3d 1305, 1305 [2005], lv denied 6 NY3d 836 [2006]). To the extent that wereached a contrary result in People vManning (52 AD3d 1295 [2008]), that case is no longer to be followed.
Defendant asserts that certain exhibits admitted in evidence at trial, i.e., photographs, couldnot be located for purposes of this appeal, thereby precluding meaningful appellate review. Thoseexhibits, however, were provided to us upon our request and thus defendant's contention is moot.We reject defendant's contention that New York lacked criminal jurisdiction (see CPL20.20). Preliminarily, we note that preservation of that contention is not required (see People v Carvajal, 6 NY3d305, 311-312 [2005]). We nevertheless conclude that the People provided enough evidenceto establish that "the alleged conduct or some consequence of it must have occurred within theState" (People v McLaughlin, 80 NY2d 466, 471 [1992]).
Defendant's contention that the evidence is legally insufficient to support the conviction ofrape is not preserved for our review because defendant failed to renew his motion for a trial orderof dismissal after presenting proof (see People v Hines, 97 NY2d 56, 61 [2001], reargdenied 97 NY2d 678 [2001]). Viewing the evidence in light of the elements of the crimes inthis nonjury trial (see People vDanielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict is not against theweight of [*2]the evidence (see generally People vBleakley, 69 NY2d 490, 495 [1987]). Defendant's contention that the search warrant wasstale is not preserved for our review (seePeople v Martinez, 39 AD3d 1246, 1246-1247 [2007], lv denied 9 NY3d 878[2007]). Likewise, defendant failed to preserve for our review his contention that County Courterred in refusing to consider lesser included offenses (see People v Buckley, 75 NY2d843, 846 [1990]). We decline to exercise our power to review those contentions as a matter ofdiscretion in the interest of justice (see CPL 470.15 [6] [a]). Finally, we conclude that thesentence is not unduly harsh or severe. Present—Fahey, J.P., Peradotto, Carni, Whalen andMartoche, JJ.