SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
February 6, 2009
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
MATTHEW GARDNER, DEFENDANT-APPELLANT.
Appeal from a judgment of the Supreme Court, Onondaga County (John J. Brunetti, A.J.), rendered March 10, 2006. The judgment convicted defendant, upon a jury verdict, of criminal sexual act in the second degree, sexual abuse in the third degree and endangering the welfare of a child.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
PRESENT: MARTOCHE, J.P., FAHEY, GREEN, PINE, AND GORSKI, JJ.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, criminal sexual act in the second degree (Penal Law § 130.45 ). We reject the contention of defendant that he was denied effective assistance of counsel based on defense counsel's failure to cross-examine the victim with respect to a prior inconsistent statement she made (see People v Rodriguez, 48 AD3d 312, lv denied 10 NY3d 939), and we conclude on the record before us that defendant received effective assistance of counsel (see generally People v Baldi, 54 NY2d 137, 147). To the extent that defendant's contention is based on matters outside the record on appeal, it must be raised by way of a motion pursuant to CPL article 440 (see People v Keith, 23 AD3d 1133, 1134-1135, lv denied 6 NY3d 815).
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