SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
October 2, 2009
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
HARRY VOGEL, DEFENDANT-APPELLANT.
Appeal from a judgment of the Herkimer County Court (Patrick L. Kirk, J.), rendered July 10, 2007. The judgment convicted defendant, upon a jury verdict, of rape in the second degree (13 counts), sexual abuse in the second degree and endangering the welfare of a child.
PRESENT: MARTOCHE, J.P., SMITH, PERADOTTO, CARNI, AND GREEN, JJ.
MEMORANDUM AND ORDER
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 13 counts of rape in the second degree (Penal Law § 130.30 ) and one count each of sexual abuse in the second degree (§ 130.60 ) and endangering the welfare of a child (§ 260.10 ). County Court properly excluded evidence, under the rape shield law (CPL 60.42), concerning the victim's purchase or use of a home pregnancy test inasmuch as defendant failed to make "a threshold showing of relevance" with respect to that evidence (People v Williams, 81 NY2d 303, 314; see People v Perryman, 178 AD2d 916, 917, lv denied 79 NY2d 1005). The court also properly refused to allow defendant to present the alibi testimony of two witnesses. Defendant failed to file a timely notice of alibi (see CPL 250.20 ), or to offer a reasonable excuse for that failure (see People v Watson, 269 AD2d 755, 756, lv denied 95 NY2d 806; People v Bembry, 258 AD2d 921, lv denied 93 NY2d 897). Furthermore, on the record before us, we reject defendant's contention that defense counsel's failure to file a timely notice of alibi constituted ineffective assistance of counsel (see People v Djanie, 31 AD3d 887, 888, lv denied 7 NY3d 866). Finally, the sentence is not unduly harsh or severe.
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