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The People of the State of New York v. Michael A. Harrington

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department


November 13, 2009

THE PEOPLE OF THE STATE OF NEW YORK,
RESPONDENT,
v.
MICHAEL A. HARRINGTON, DEFENDANT-APPELLANT.

1429

PRESENT: HURLBUTT, J.P., MARTOCHE, SMITH, CARNI, AND PINE, JJ.

MEMORANDUM AND ORDER

Appeal from a judgment of the Monroe County Court (Richard A. Keenan, J.), rendered January 18, 2007. The judgment convicted defendant, upon a jury verdict, of course of sexual conduct against a child in the first degree.

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 course of sexual conduct against a child in the first degree (Penal Law § 130.75 [1] [a]). Defendant failed to preserve for our review his challenge to the legal sufficiency of the evidence by failing to renew his motion for a trial order of dismissal after presenting evidence (see People v Hines, 97 NY2d 56, 61, rearg denied 97 NY2d 678). Contrary to the implicit contention of defendant, he did not preserve his challenge for our review by his post-trial motion pursuant to CPL 330.30 (see People v Mills, 28 AD3d 1156, 1157, lv denied 7 NY3d 903). In any event, defendant's challenge lacks merit (see generally People v Bleakley, 69 NY2d 490, 495). Furthermore, viewing the evidence in light of the elements of the crime as charged to the jury (see People v Danielson, 9 NY3d 342, 349), we conclude that the verdict is not against the weight of the evidence (see generally Bleakley, 69 NY2d at 495).

"Great deference is accorded to the jury's resolution of credibility issues . . ., and it cannot be said herein that the jury failed to give the evidence the weight it should be accorded" (People v McKinnon, 15 AD3d 842, 842, lv denied 4 NY3d 888).

Defendant also failed to preserve for our review his contention that he was denied a fair trial by prosecutorial misconduct (see People v Cox, 21 AD3d 1361, 1363-1364, lv denied 6 NY3d 753), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). We reject the further contention of defendant that he was denied effective assistance of counsel. Viewing the evidence, the law and the circumstances of the case as a whole and as of the time of the representation, we conclude that defendant was afforded meaningful representation (see generally People v Baldi, 54 NY2d 137, 147). Finally, the sentence is not unduly harsh or severe.

Patricia L. Morgan Clerk of the Court

20091113

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