September 27, 2013
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
STANLEY A. KAMINSKI, DEFENDANT-APPELLANT.
Appeal from a judgment of the Oswego County Court (Walter W. Hafner, Jr., J.), rendered May 13, 2011. The judgment convicted defendant, upon a jury verdict, of aggravated unlicensed operation of a motor vehicle in the first degree and driving while ability impaired.
D.J. & J.A. CIRANDO, ESQS., SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT.
GREGORY S. OAKES, DISTRICT ATTORNEY, OSWEGO (COURTNEY E. PETTIT OF COUNSEL), FOR RESPONDENT.
PRESENT: SCUDDER, P.J., FAHEY, SCONIERS, AND VALENTINO, JJ.
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 aggravated unlicensed operation of a motor vehicle in the first degree (Vehicle and Traffic Law § 511  [a]) and driving while ability impaired (§ 1192 ). As defendant correctly concedes, he failed to preserve for our review his contention that the conviction is not supported by legally sufficient evidence (see People v Hines, 97 N.Y.2d 56, 61, rearg denied 97 N.Y.2d 678). In any event, that contention lacks merit (see generally People v Bleakley, 69 N.Y.2d 490, 495). In addition, viewing the evidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9 N.Y.3d 342, 349), we conclude that the verdict is not against the weight of the evidence (see generally Bleakley, 69 N.Y.2d at 495).
Defendant's contention that he was deprived of effective assistance of counsel based on defense counsel's failure to call a certain witness to testify at trial or to seek an adjournment in order to call that witness at trial is based on matters outside the record on appeal, and thus the proper procedural vehicle for raising that contention is by way of a motion pursuant to CPL 440.10 (see People v Wittman, 103 A.D.3d 1206, 1206-1207, lv denied 21 N.Y.3d 915; People v King, 90 A.D.3d 1533, 1534, lv denied 18 N.Y.3d 959). Moreover, inasmuch as "the evidence is legally sufficient to support defendant's conviction..., it cannot be said that defense counsel's failure to renew the motion for a trial order of dismissal constitutes ineffective assistance of counsel" (People v Pytlak, 99 A.D.3d 1242, 1243, lv denied 20 N.Y.3d 988; see generally People v Caban, 5 N.Y.3d 143, 152).