| People v Kaminski |
| 2013 NY Slip Op 06193 [109 AD3d 1186] |
| September 27, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vStanley A. Kaminski, Appellant. |
—[*1] Gregory S. Oakes, District Attorney, Oswego (Courtney E. Pettit of counsel), forrespondent.
Appeal from a judgment of the Oswego County Court (Walter W. Hafner, Jr., J.),rendered May 13, 2011. The judgment convicted defendant, upon a jury verdict, ofaggravated unlicensed operation of a motor vehicle in the first degree and driving whileability impaired.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of aggravated unlicensed operation of a motor vehicle in the first degree (Vehicleand Traffic Law § 511 [3] [a]) and driving while ability impaired (§ 1192[1]). As defendant correctly concedes, he failed to preserve for our review his contentionthat the conviction is not supported by legally sufficient evidence (see People vHines, 97 NY2d 56, 61 [2001], rearg denied 97 NY2d 678 [2001]). In anyevent, that contention lacks merit (see generally People v Bleakley, 69 NY2d490, 495 [1987]). In addition, viewing the evidence in light of the elements of the crimesas charged to the jury (seePeople v Danielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict isnot against the weight of the evidence (see generally Bleakley, 69 NY2d at 495).
Defendant's contention that he was deprived of effective assistance of counsel basedon defense counsel's failure to call a certain witness to testify at trial or to seek anadjournment in order to call that witness at trial is based on matters outside the record onappeal, and thus the proper procedural vehicle for raising that contention is by way of amotion pursuant to CPL 440.10 (see People v Wittman, 103 AD3d 1206, 1206-1207 [2013],lv denied 21 NY3d 915 [2013]; People v King, 90 AD3d 1533, 1534 [2011], lvdenied 18 NY3d 959 [2012]). Moreover, inasmuch as "the evidence is legallysufficient to support defendant's conviction . . . , it cannot be said thatdefense counsel's failure to renew the motion for a trial order of dismissal constitutesineffective assistance of counsel" (People v Pytlak, 99 AD3d 1242, 1243 [2012], lvdenied 20 NY3d 988 [2012]; see generally People v Caban, 5 NY3d 143, 152 [2005]).Present—Scudder, P.J., Fahey, Sconiers and Valentino, JJ.