| People v Wilson |
| 2013 NY Slip Op 08695 [112 AD3d 1317] |
| December 27, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vMichael Wilson, Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel),for respondent.
Appeal from a judgment of the Onondaga County Court (William D. Walsh, J.),rendered September 21, 2010. The judgment convicted defendant, upon a jury verdict, ofpredatory sexual assault against a child, rape in the first degree and endangering thewelfare of a child.
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 predatory sexual assault against a child (Penal Law § 130.96), rape inthe first degree (§ 130.35 [1]), and endangering the welfare of a child (§260.10 [1]). We reject defendant's contention that County Court abused its discretion ordenied him his constitutional right to present a defense in precluding the alibi testimonyof a defense witness inasmuch as defendant failed to file a notice of alibi pursuant toCPL 250.20 (see People v Watson, 269 AD2d 755, 756 [2000], lv denied95 NY2d 806 [2000]). Defendant failed to preserve for our review his further contentionthat he was denied his constitutional right to present a defense by the court's preclusionof the non-alibi testimony of that defense witness (see People v Lane, 7 NY3d 888, 889 [2006]; People v Baxter, 108 AD3d1158, 1160 [2013]), and we decline to exercise our power to review that contentionas a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]).
Defendant failed to preserve for our review his contention that the court erred ininstructing the jury that his wife and daughter were interested witnesses as a matter oflaw (see CPL 470.05 [2]). In any event, although we agree with him that thecourt erred in giving that instruction (see People v Fuentes, 52 AD3d 1297, 1299 [2008], lvdenied 11 NY3d 736 [2008]), we conclude that the error is harmless (see id.;see generally People v Crimmins, 36 NY2d 230, 241-242 [1975]). Contrary todefendant's further contention, "there is no evidence in the record indicating an abuse ofdiscretion by the court in denying the motion[s] for substitution of counsel where[, ashere, the] defendant failed to proffer specific allegations of a 'seemingly serious request'that would require the court to engage in a minimal inquiry" (People v Porto, 16 NY3d93, 100 [2010]; see People v Beriguette, 84 NY2d 978, 980 [1994],rearg denied 85 NY2d 924 [1995]; People v Davis, 99 AD3d 1228, 1229 [2012], lv denied20 NY3d 1010 [2013]).
We reject defendant's contention that he was denied effective assistance of counsel.[*2]Defense counsel's failure to file a notice of alibi andfailure to object to the improper jury instruction concerning defendant's wife anddaughter did not render her representation less than meaningful (see generally Peoplev Benevento, 91 NY2d 708, 712-713 [1998]). To the extent that defendant contendsthat he was denied effective assistance of counsel by defense counsel's failure to object tothe court's rulings with respect to two proposed defense witnesses, as well as her failureto make a closing argument at the end of the suppression hearing, that contention iswithout merit. Defendant failed to demonstrate that those objections and that closingargument, if made, would have been successful (see People v Stultz, 2 NY3d 277, 287 [2004]; People v Noguel, 93 AD3d1319, 1320 [2012], lv denied 19 NY3d 965 [2012]). Finally, we concludethat the sentence is not unduly harsh or severe. Present—Scudder, P.J., Centra,Lindley, Sconiers and Valentino, JJ.