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

561
KA 11-00093
PRESENT: SMITH, J.P., CARNI, DEJOSEPH, CURRAN, AND TROUTMAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

HERIBERTO SOTO, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DREW R. DUBRIN OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL),
FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County (David
D. Egan, J.), rendered January 4, 2011. The judgment convicted
defendant, upon a jury verdict, of predatory sexual assault against a
child.

     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 predatory sexual assault against a child (Penal
Law § 130.96). We reject defendant’s contention that he was denied
his right to be present at a sidebar conference during which Supreme
Court spoke directly with the child victim. The court “informed
defendant of his right to be present at sidebar conferences and his
ability to waive that right . . . Defendant’s failure to attend [the
subject] sidebar conference[] after having been informed of the right
to do so constitutes a waiver of that right” (People v Yeldon, 251
AD2d 1047, 1048, lv denied 92 NY2d 908).

     Defendant failed to object when the court asked him questions
during cross-examination, and he therefore failed to preserve for our
review his contention that the court assumed the role or appearance of
the prosecutor (see CPL 470.05 [2]; People v Pollard, 70 AD3d 1403,
1405, lv denied 14 NY3d 891). In any event, we reject that
contention. It is well established that a court may intervene “in
order to clarify a confusing issue” (People v Arnold, 98 NY2d 63, 67),
and we conclude that the court’s questioning of defendant to clarify
two points, i.e., when defendant received grand jury minutes and the
age of one of the child victim’s siblings, did not constitute an abuse
of discretion (see id. at 67-68; Pollard, 70 AD3d at 1405).

     Defendant failed to preserve for our review his contention that
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                                                         KA 11-00093

he was denied a fair trial based on prosecutorial misconduct (see
People v Douglas, 60 AD3d 1377, 1377, lv denied 12 NY3d 914), 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]).
Contrary to defendant’s further contention, neither defense counsel’s
failure to object to the alleged instances of prosecutorial misconduct
nor any of defense counsel’s other alleged shortcomings constituted
ineffective assistance of counsel (see generally People v Walker, 50
AD3d 1452, 1453-1454, lv denied 11 NY3d 795, reconsideration denied 11
NY3d 931). Rather, we conclude that the evidence, the law, and the
circumstances of this case, viewed in totality and as of the time of
the representation, establish that defendant received meaningful
representation (see generally People v Baldi, 54 NY2d 137, 147).

     We have considered defendant’s remaining contentions and conclude
that they are without merit.




Entered:   July 1, 2016                         Frances E. Cafarell
                                                Clerk of the Court
