| People v Wittman |
| 2013 NY Slip Op 00817 [103 AD3d 1206] |
| February 8, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v JohnJ. Wittman, Appellant. |
—[*1] Sandra Doorley, District Attorney, Rochester (Matthew Dunham of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (John J. Connell, J.), renderedOctober 9, 2008. The judgment convicted defendant, upon a jury verdict, of assault in thesecond degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant was convicted following a jury trial of assault in thesecond degree (Penal Law § 120.05 [2]). Defendant's contention that he wasdeprived of effective assistance of counsel by defense counsel's failure to call certainpersons as alibi witnesses is based on matters outside the record on appeal, and thus theproper procedural vehicle for raising that contention is by way of a motion pursuant toCPL 440.10 (see People vKing, 90 AD3d 1533, 1534 [2011], lv denied 18 NY3d 959 [2012];People v Watson, 269 AD2d 755, 756 [2000], lv denied 95 NY2d 806[2000]). We reject defendant's further contention that defense counsel was ineffective infailing to conduct an adequate cross-examination of two of the People's witnesses. "'Speculation that a more vigorous cross-examination might have [undermined thecredibility of witnesses] does not establish ineffectiveness of counsel' " (People v Bassett, 55 AD3d1434, 1438 [2008], lv denied 11 NY3d 922 [2009]). Viewing the evidence,the law and the circumstances of this case, in totality and as of the time of therepresentation, we conclude that defendant received meaningful representation (seegenerally People v Baldi, 54 NY2d 137, 147 [1981]).
Defendant failed to preserve for our review his contention that he was deprived of afair trial based on various instances of judicial misconduct (see People v Yut WaiTom, 53 NY2d 44, 55-56 [1981]), and we decline to exercise our power to reviewthat contention as a matter of discretion in the interest of justice (see CPL 470.15[6] [a]; People v Black, 38AD3d 1283, 1286 [2007], lv denied 8 NY3d 982 [2007]). Defendant alsofailed to preserve for our review his contention that he was denied a fair trial byprosecutorial misconduct (seePeople v Figgins, 72 AD3d 1599, 1600 [2010], lv denied 15 NY3d 893[2010]), and, in any event, that contention is without merit. The alleged misconduct wasnot so egregious as to deprive defendant of a fair trial (see People v Pringle, 71 AD3d1450, 1451 [2010], lv denied 15 NY3d 777 [2010]; People v Scott, 60 AD3d1483, 1484 [2009], lv denied 12 NY3d 859 [2009]). Present—Smith,J.P., Fahey, Valentino, Whalen and Martoche, JJ.