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

171
KA 14-01399
PRESENT: WHALEN, P.J., LINDLEY, DEJOSEPH, NEMOYER, AND TROUTMAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

HARVEY BLACK, DEFENDANT-APPELLANT.


D.J. & J.A. CIRANDO, ESQS., SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR
DEFENDANT-APPELLANT.

SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (Thomas J.
Miller, J.), rendered August 4, 2014. The judgment convicted
defendant, upon a jury verdict, of sexual abuse 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 sexual abuse in the first degree (Penal Law
§ 130.65 [1]). Defendant failed to seek dismissal of a sworn juror on
the ground that the juror was grossly unqualified, and thus he failed
to preserve for our review his contention that County Court erred in
refusing to grant that relief (see CPL 470.05 [2]; People v Swank, 109
AD3d 1089, 1090, lv denied 23 NY3d 968). 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]). Additionally, we reject
defendant’s contention that he was deprived of defense counsel’s
judgment in deciding whether to request the court to charge the jury
with a lesser-included offense. Defense counsel originally requested
a lesser-included offense charge, but after an off-the-record
discussion with defendant, defense counsel agreed to forgo such a
charge. Furthermore, during the charge conference, defendant
confirmed that he had adequate time to confer with defense counsel
regarding the lesser-included offense charge, and defense counsel
agreed to forgo the charge on the record. The record therefore
demonstrates that, “after discussing the issue at length, defense
counsel agreed with or acceded to defendant’s position” (People v
Gottsche, 118 AD3d 1303, 1304-1305, lv denied 24 NY3d 1084), and we
conclude that “there is nothing in the record to establish that the
decision to forgo the submission of lesser-included offenses was made
solely in deference to defendant, that it was against the advice of
defendant’s counsel, or that it was inconsistent with defense
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                                                         KA 14-01399

counsel’s trial strategy” (id. at 1304).

     Defendant also contends that the evidence is legally insufficient
to support the conviction, and that the verdict is against the weight
of the evidence inasmuch as the People failed to prove the element of
forcible compulsion. Defendant failed to preserve his legal
sufficiency contention for our review because his motion for a trial
order of dismissal “was not specifically directed” at that ground
(People v Vassar, 30 AD3d 1051, 1052, lv denied 7 NY3d 796; see People
v Gray, 86 NY2d 10, 19). In any event, contrary to defendant’s
contention, we conclude that the evidence, viewed in the light most
favorable to the People, is legally sufficient to establish that he
subjected the victim to sexual contact by forcible compulsion (see
People v Gibson, 134 AD3d 1512, 1513). 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 further conclude that the verdict is
not against the weight of the evidence (see generally People v
Bleakley, 69 NY2d 490, 495).

     We reject defendant’s further contention that he was denied
effective assistance of counsel. Defendant has failed to establish
the absence of any strategic or other legitimate explanation for
defense counsel’s alleged errors during voir dire of the jury (see
generally People v Caban, 5 NY3d 143, 152), or for defense counsel’s
failure to call an expert witness (see People v Maxey, 129 AD3d 1664,
1665). We also reject defendant’s contention that he was deprived of
the right to effective assistance of counsel based on defense
counsel’s cross-examination of prosecution witnesses (see People v
Williams, 110 AD3d 1458, 1459-1460, lv denied 22 NY3d 1160), as
“[s]peculation that a more vigorous cross-examination might have
[undermined the credibility of a witness] does not establish
ineffectiveness of counsel” (People v Bassett, 55 AD3d 1434, 1438, lv
denied 11 NY3d 922 [internal quotation marks omitted]). Thus, we
conclude that defendant received meaningful representation (see
generally People v Baldi, 54 NY2d 137, 147).

     Defendant has failed to preserve for our review his contention
that he was deprived of a fair trial by prosecutorial misconduct
inasmuch as he did not object to any alleged instances thereof (see
People v Jemes, 132 AD3d 1361, 1362-1363, lv denied 26 NY3d 1110), and
we decline to exercise our power to review the contention as a matter
of discretion in the interest of justice (see CPL 470.15 [6] [a]). In
any event, we conclude that none of the prosecutor’s comments on
summation were so egregious as to deprive defendant of a fair trial
(see People v Paul, 78 AD3d 1684, 1684-1685, lv denied 16 NY3d 834),
and defense counsel’s failure to object to those comments did not
deprive defendant of effective assistance of counsel (see People v
Koonce, 111 AD3d 1277, 1279).

     Defendant’s contention that the court erred in handling a note
received from a juror during the trial is not preserved for our review
(see generally People v Nealon, 26 NY3d 152, 160; People v Starling,
85 NY2d 509, 516), and we decline to exercise our power to review it
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                                                         KA 14-01399

as a matter of discretion in the interest of justice (see CPL 470.15
[6] [a]). Finally, defendant’s sentence is not unduly harsh or
severe.




Entered:   March 25, 2016                      Frances E. Cafarell
                                               Clerk of the Court
