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

1050
KA 12-02109
PRESENT: SCUDDER, P.J., SMITH, FAHEY, SCONIERS, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

WAYNE IRVIN, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SUSAN C. MINISTERO OF
COUNSEL), FOR DEFENDANT-APPELLANT.

LORI PETTIT RIEMAN, DISTRICT ATTORNEY, LITTLE VALLEY, FOR RESPONDENT.


     Appeal from a judgment of the Cattaraugus County Court (Larry M.
Himelein, J.), rendered September 4, 2012. The judgment convicted
defendant, upon a jury verdict, of rape in the first degree, criminal
sexual act in the first degree, sexual abuse in the first degree and
endangering the welfare of 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 rape in the first degree (Penal Law § 130.35
[3]), criminal sexual act in the first degree (§ 130.50 [3]), sexual
abuse in the first degree (§ 130.65 [3]), and endangering the welfare
of a child (§ 260.10 [1]). Defendant failed to preserve for our
review his contention that the testimony of a police witness regarding
his observations of the victim’s interview deprived him of his right
of confrontation (see People v Davis, 87 AD3d 1332, 1334-1335, lv
denied 18 NY3d 858, reconsideration denied 18 NY3d 956). In any
event, even assuming, arguendo, that the police witness’s testimony
equated to the introduction of the victim’s testimonial statements in
evidence, we note that “ ‘[t]he Confrontation Clause . . . does not
bar the use of testimonial statements for purposes other than
establishing the truth of the matter asserted’ ” (People v Reynoso, 2
NY3d 820, 821, quoting Crawford v Washington, 541 US 36, 59 n 9; see
Davis, 87 AD3d at 1335). Here, the testimony was properly admitted in
evidence for the purpose of explaining the police witness’s actions
and the sequence of events leading to defendant’s arrest (see People v
Davis, 23 AD3d 833, 835, lv denied 6 NY3d 811). To the extent that
defendant contends that he was deprived of his right of confrontation
by the victim’s failure to testify, that contention is unpreserved for
our review and, in any event, is without merit (see People v Watts, 58
AD3d 647, 648, lv dismissed 12 NY3d 763, lv denied 12 NY3d 789; see
also People v Andre W., 44 NY2d 179, 184).
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                                                         KA 12-02109

     Contrary to defendant’s contention, County Court properly refused
to suppress the written statement that he made to a police witness.
The record of the suppression hearing supports the court’s
determination that defendant knowingly, voluntarily and intelligently
waived his Miranda rights before making the statement (see People v
Sands, 81 AD3d 1263, 1263, lv denied 17 NY3d 800).

     Defendant further contends that the court deprived him of his
constitutional rights to a fair trial, impartial jury, and due process
by failing to excuse two prospective jurors who did not unequivocally
assure their impartiality. “By failing to raise that challenge in the
trial court, however, defendant failed to preserve it for our review”
(People v Stepney, 93 AD3d 1297, 1297-1298, lv denied 19 NY3d 968).
In any event, “even if defendant had challenged [those] prospective
juror[s] . . . and his challenge[s] had merit, [they] nevertheless
would not be properly before us because he failed to exhaust his
peremptory challenges prior to the completion of jury selection” (id.
at 1298).

     By making only a general motion for a trial order of dismissal,
defendant failed to preserve for our review his contention that there
is legally insufficient evidence to corroborate his confession
pursuant to CPL 60.50 (see People v Gray, 86 NY2d 10, 19; People v
Tyra, 84 AD3d 1758, 1759, lv denied 17 NY3d 822). Defendant, however,
also contends that the verdict is against the weight of the evidence,
and “ ‘we necessarily review the evidence adduced as to each of the
elements of the crimes in the context of our review of [that
contention]’ ” (Stepney, 93 AD3d at 1298; see People v Danielson, 9
NY3d 342, 349-350). Viewing the evidence in light of the elements of
the crimes as charged to the jury, we conclude that “the People proved
beyond a reasonable doubt all elements of the crimes charged”
(Stepney, 93 AD3d at 1298; see Danielson, 9 NY3d at 349; see generally
People v Bleakley, 69 NY2d 490, 495).

     We reject defendant’s further contention that he was denied
effective assistance of counsel. To the extent that defendant
contends that he was denied effective assistance of counsel based upon
defense counsel’s failure to make a more specific motion for a trial
order of dismissal, that contention is without merit because defendant
failed to demonstrate that the motion, if made, would have been
successful (see People v Bassett, 55 AD3d 1434, 1437-1438, lv denied
11 NY3d 922). To the extent that defendant contends that defense
counsel was ineffective for failing to challenge two prospective
jurors, that contention also lacks merit inasmuch as defendant
“ ‘failed to show the absence of a strategic explanation for defense
counsel’s failure’ to challenge th[ose] prospective juror[s]”
(Stepney, 93 AD3d at 1298). With respect to each of the remaining
alleged instances of ineffective assistance, we conclude that
defendant failed “ ‘to demonstrate the absence of strategic or other
legitimate explanations’ for counsel’s alleged shortcomings” (People v
Benevento, 91 NY2d 708, 712), and the record establishes that defense
counsel provided meaningful representation to defendant (see People v
Baldi, 54 NY2d 137, 147). Defendant’s contention with respect to
                                 -3-                          1050
                                                         KA 12-02109

alleged prosecutorial misconduct has not been preserved for our review
(see People v Arnold, 107 AD3d 1526, 1527; People v Mull, 89 AD3d
1445, 1446, lv denied 19 NY3d 965), 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]).

     Defendant failed to preserve for our review any contention
regarding the failure to comply with the procedural requirements of
CPL 400.21 (see People v Perez, 85 AD3d 1538, 1541). In any event,
“[a]lthough [the court] did not formally ask defendant whether he
wished to controvert the allegations in the [predicate] felony
offender statement (see CPL 400.21 [3]), the record establishes that
defendant had an opportunity to do so” (People v Hughes, 28 AD3d 1185,
1185, lv denied 7 NY3d 790). Thus, under the circumstances presented
here, we conclude that there was the requisite substantial compliance
with CPL 400.21 (see id.). Defendant’s contention that the court
erred in setting the expiration date of the order of protection is
also unpreserved for our review (see CPL 470.05 [2]). In any event,
the court properly calculated the order of protection’s expiration
date (see CPL 530.13 [4] [A]). Finally, we conclude that the sentence
is not unduly harsh or severe.




Entered:   November 8, 2013                    Frances E. Cafarell
                                               Clerk of the Court
