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

392
KA 09-00419
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, LINDLEY, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

CLARENCE WILLIAMS, DEFENDANT-APPELLANT.


LORENZO NAPOLITANO, ROCHESTER, FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (ERIN TUBBS OF COUNSEL),
FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Joseph D. Valentino, J.), rendered October 10, 2008. The judgment
convicted defendant, upon a jury verdict, of course of sexual conduct
against a child 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: On appeal from a judgment convicting him following a
jury trial of course of sexual conduct against a child in the first
degree (Penal Law § 130.75 [1] [a]) and endangering the welfare of a
child (§ 260.10 [1]), defendant contends that he is entitled to a new
trial because Supreme Court neglected to give limiting instructions
with respect to Molineux evidence establishing that he had subjected
the victim’s brother to physical abuse (see People v Molineux, 168 NY
264). As defendant correctly concedes, that contention is unpreserved
for our review because his attorney did not request a limiting
instruction and failed to object to the court’s failure to provide one
(see CPL 470.05 [2]; People v Sommerville, 30 AD3d 1093, 1094-1095;
People v Wright, 5 AD3d 873, 876, lv denied 3 NY3d 651). Because the
Molineux evidence in question did not relate to prior sexual abuse,
and because it appears from the record that defense counsel knew of
the court’s failure to give limiting instructions and yet remained
silent when the error could have been corrected, we decline to
exercise our power to review that contention as a matter of discretion
in the interest of justice (see People v Westbrooks, 90 AD3d 1536,
1537, lv denied 18 NY3d 963; cf. People v Presha, 83 AD3d 1406, 1407).

     We reject defendant’s further contention that he was deprived of
effective assistance of counsel due to defense counsel’s failure to
object to the lack of a limiting instruction. Defense counsel may
have had a strategic reason for failing to request a limiting
                                 -2-                           392
                                                         KA 09-00419

instruction inasmuch as he may not have wished to draw further
attention to the Molineux evidence (see generally People v Benevento,
91 NY2d 708, 712). In any event, defendant points to no other alleged
deficiencies on the part of defense counsel, and this is not one of
those “rare” cases where a single alleged error by defense counsel was
so egregious that it deprived defendant of effective assistance of
counsel (People v Turner, 5 NY3d 476, 478; see generally People v
Cosby, 82 AD3d 63, 67, lv denied 16 NY3d 857).

     Contrary to defendant’s further contention, the court did not
improperly assume the function of an advocate at trial by directing
the prosecutor to elicit testimony from the victim clarifying that, by
referring to defendant’s “private part,” she meant his penis. A trial
court “is entitled to question witnesses to clarify testimony and to
facilitate the progress of the trial” and to “elicit relevant and
important facts” (People v Yut Wai Tom, 53 NY2d 44, 55, 57). A court
may also request a prosecutor to ask particular questions to clarify
ambiguous testimony (see People v Medina, 284 AD2d 122, 122, lv denied
96 NY2d 922, citing People v Moulton, 43 NY2d 944; see also People v
Soto, 210 AD2d 5, 6, lv denied 84 NY2d 1039). Although a court’s
power to elicit testimony should “be exercised sparingly, without
partiality, bias or hostility” (People v Jamison, 47 NY2d 882, 883;
see Yut Wai Tom, 53 NY2d at 57), there is no indication in the record
here that the court was biased against defendant or otherwise hostile
toward him. In any event, we note that the victim in her direct
testimony sufficiently described defendant’s “private part” as his
penis inasmuch as she confirmed that his “private part” was the “part”
from which he urinated (see generally People v Pereau, 45 AD3d 978,
981, lv denied 9 NY3d 1037). Thus, clarification on that point was
not necessary, and any alleged error of the court was therefore
harmless (see generally People v Crimmins, 36 NY2d 230, 241–242).

     Finally, we have reviewed defendant’s contention regarding the
alleged defectiveness of the grand jury proceedings and conclude that
it lacks merit (see generally People v Hebert, 68 AD3d 1530, 1533-
1534, lv denied 14 NY3d 841).




Entered:   June 14, 2013                        Frances E. Cafarell
                                                Clerk of the Court
