Appeal from a judgment of the Criminal Court of the City of New York, Queens County (Joseph Zayas, J.), rendered May 26, 2009.
Decided on January 20, 2012
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
PRESENT: WESTON, J.P., GOLIA and RIOS, JJ
The judgment convicted defendant, after a non-jury trial, of attempted sexual abuse in the second degree and attempted endangering the welfare of a child.
ORDERED that the judgment of conviction is affirmed.
Following a non-jury trial, defendant was convicted of attempted sexual abuse in the second degree (Penal Law §§ 110.00, 130.60 ) and attempted endangering the welfare of a child (Penal Law §§ 110.00, 260.10). The accusatory instrument alleged that, on July 1, 2007, while the 13-year-old complainant "was changing in her bedroom the defendant . . ., her father, walked in and began rubbing her breasts and then placed his hand down her pants and began rubbing her vagina." Prior to trial, the People moved to, among other things, elicit evidence regarding three prior bad acts of defendant which he had allegedly committed against the complainant. After a hearing (see People v Ventimiglia, 52 NY2d 350, 359-360 ), the Criminal Court granted the People's motion, and this evidence was adduced at trial.
On appeal, defendant contends that the Criminal Court erroneously determined that the People could elicit evidence of his prior bad acts. In making its determination, the court stated that it was allowing the People to elicit this evidence in order to show a pattern of conduct, intent, and absence of mistake, and to provide background information on the nature of the relationship between defendant and the complainant. The court also stated that it "would not consider it as proof whatsoever that the defendant possessed a propensity for a disposition to commit the crime charged." Thus, in permitting this evidence, the court clearly did not base its finding of guilt on collateral matters, or convict defendant because of his past (see People v Alvino, 71 NY2d 233, 241 ). Nor was the sole purpose of this evidence to show defendant's bad character or propensity towards crime (id.). Consequently, we find that the court did not improvidently exercise its discretion when it balanced the probative value of the evidence against any unfair prejudice to defendant (see People v Dorm, 12 NY3d 16, 17 ; People v Spotford, 85 NY2d 593, 597 ; People v Ventimiglia, 52 NY2d at 359-360) and determined that the People could elicit such evidence.
Defendant's challenge to the prosecutor's alleged misconduct during summation is unpreserved for appellate review (see CPL 470.05 ; People v Romero, 7 NY3d 911, 912 ). In any event, in a non-jury trial, the court is presumed to have considered only competent evidence in reaching its verdict (see People v Kozlow, 46 AD3d 913, 915 ), and a "judge is deemed uniquely capable of distinguishing those issues properly presented to him from those not" (People v Reyes, 116 AD2d 602, 603 ).
To the extent that defendant's contention that he was denied the
effective assistance of counsel rests on matters outside the record,
we find that it is not reviewable on direct appeal as it implicates
matters of trial strategy and/or concerns conversations or decisions
not made in the courtroom which are dehors the record on appeal.
Defendant was required to raise this contention in a CPL 440.10 motion
so that it could have been evaluated upon a complete record (see
People v Rivera, 71 NY2d 705, 709 ; People v Bregaudit, 31 Misc
3d 152[A], 2011 NY Slip Op 51136[U] [App Term, 9th & 10th Jud Dists 2011]; People v Chaplin,
16 Misc 3d 137[A], 2007 NY Slip Op 51741[U] [App Term, 2d & 11th Jud Dists 2007]). Insofar as the existing
record permits review of defendant's contention that he was denied the effective assistance of counsel (see
People v Drago, 50 AD3d 920 ), we find that defense counsel provided defendant with meaningful representation
in accordance with the New York State standard (see NY Const, art I, § 6; People
v Benevento, 91 NY2d 708 ; People v Baldi, 54 NY2d 137 ;
People v Johnson, 71 AD3d 1048 ; People v Garrett, 68 AD3d 781
). In addition, counsel's performance could not be characterized
as either deficient or prejudicial to defendant and, thus, was also in
accordance with the federal standard (see US Const Amend VI;
Strickland v Washington, 466 US 688 ).
Accordingly, the judgment of conviction ...