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

962
KA 11-01660
PRESENT: SCUDDER, P.J., FAHEY, SCONIERS, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

STANLEY A. KAMINSKI, DEFENDANT-APPELLANT.


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.


     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.

     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 [3] [a])
and driving while ability impaired (§ 1192 [1]). 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 NY2d 56, 61, rearg denied 97 NY2d
678). In any event, that contention lacks merit (see generally People
v Bleakley, 69 NY2d 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 NY3d 342, 349), we conclude that the verdict is not
against the weight of the evidence (see generally Bleakley, 69 NY2d 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 AD3d 1206, 1206-1207, lv denied 21 NY3d 915; People v
King, 90 AD3d 1533, 1534, lv denied 18 NY3d 959). Moreover, inasmuch
as “the evidence is legally sufficient to support defendant’s
                                 -2-                          962
                                                        KA 11-01660

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 AD3d 1242,
1243, lv denied 20 NY3d 988; see generally People v Caban, 5 NY3d 143,
152).




Entered:   September 27, 2013                  Frances E. Cafarell
                                               Clerk of the Court
