| People v Williams |
| 2013 NY Slip Op 04456 [107 AD3d 1516] |
| June 14, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vClarence Williams, Appellant. |
—[*1] Sandra Doorley, District Attorney, Rochester (Erin Tubbs of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Joseph D.Valentino, J.), rendered October 10, 2008. The judgment convicted defendant, upon ajury verdict, of course of sexual conduct against a child in the first degree andendangering 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 jury trial ofcourse of sexual conduct against a child in the first degree (Penal Law § 130.75 [1][a]) and endangering the welfare of a child (§ 260.10 [1]), defendant contends thathe is entitled to a new trial because Supreme Court neglected to give limiting instructionswith respect to Molineux evidence establishing that he had subjected the victim'sbrother to physical abuse (see People v Molineux, 168 NY 264 [1901]). Asdefendant correctly concedes, that contention is unpreserved for our review because hisattorney did not request a limiting instruction and failed to object to the court's failure toprovide one (see CPL 470.05 [2]; People v Sommerville, 30 AD3d 1093, 1094-1095 [2006];People v Wright, 5 AD3d873, 876 [2004], lv denied 3 NY3d 651 [2004]). Because theMolineux evidence in question did not relate to prior sexual abuse, and because itappears from the record that defense counsel knew of the court's failure to give limitinginstructions and yet remained silent when the error could have been corrected, we declineto exercise our power to review that contention as a matter of discretion in the interest ofjustice (see People vWestbrooks, 90 AD3d 1536, 1537 [2011], lv denied 18 NY3d 963[2012]; cf. People v Presha,83 AD3d 1406, 1407 [2011]).
We reject defendant's further contention that he was deprived of effective assistanceof counsel due to defense counsel's failure to object to the lack of a limiting instruction.Defense counsel may have had a strategic reason for failing to request a limitinginstruction inasmuch as he may not have wished to draw further attention to theMolineux evidence (see generally People v Benevento, 91 NY2d 708,712 [1998]). In any event, defendant points to no other alleged deficiencies on the part ofdefense counsel, and this is not one of those "rare" cases where a single alleged error bydefense counsel was so egregious that it deprived defendant of effective assistance ofcounsel (People v Turner, 5NY3d 476, 478 [2005]; seegenerally People v Cosby, 82 AD3d 63, 67 [2011], lv denied 16 NY3d857 [2011]).
Contrary to defendant's further contention, the court did not improperly assume the[*2]function of an advocate at trial by directing theprosecutor to elicit testimony from the victim clarifying that, by referring to defendant's"private part," she meant his penis. A trial court "is entitled to question witnesses toclarify testimony and to facilitate the progress of the trial" and to "elicit relevant andimportant facts" (People v Yut Wai Tom, 53 NY2d 44, 55, 57 [1981]). A courtmay also request a prosecutor to ask particular questions to clarify ambiguous testimony(see People v Medina, 284 AD2d 122, 122 [2001], lv denied 96 NY2d922 [2001], citing People v Moulton, 43 NY2d 944 [1978]; see also People vSoto, 210 AD2d 5, 6 [1994], lv denied 84 NY2d 1039 [1995]). Although acourt's power to elicit testimony should "be exercised sparingly, without partiality, bias orhostility" (People v Jamison, 47 NY2d 882, 883 [1979]; see Yut WaiTom, 53 NY2d at 57), there is no indication in the record here that the court wasbiased against defendant or otherwise hostile toward him. In any event, we note that thevictim in her direct testimony sufficiently described defendant's "private part" as hispenis inasmuch as she confirmed that his "private part" was the "part" from which heurinated (see generally People vPereau, 45 AD3d 978, 981 [2007], lv denied 9 NY3d 1037 [2008]).Thus, clarification on that point was not necessary, and any alleged error of the court wastherefore harmless (see generally People v Crimmins, 36 NY2d 230, 241-242[1975]).
Finally, we have reviewed defendant's contention regarding the alleged defectivenessof the grand jury proceedings and conclude that it lacks merit (see generally People v Hebert,68 AD3d 1530, 1533-1534 [2009], lv denied 14 NY3d 841 [2010]).Present—Smith, J.P., Fahey, Peradotto, Lindley and Whalen, JJ.