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People v. Vogel

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,
v.
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.

Memorandum

Defendant appeals from a judgment convicting him upon a jury verdict of 13 counts of rape in the second degree (Penal Law § 130.30 [1]) and one count each of sexual abuse in the second degree (§ 130.60 [2]) and endangering the welfare of a child (§ 260.10 [1]). 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 [1]), 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.

20091002

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