         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
27
KA 08-02370
PRESENT: SMITH, J.P., FAHEY, VALENTINO, WHALEN, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JOHN J. WITTMAN, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (MARY P. DAVISON OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MATTHEW DUNHAM OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (John J.
Connell, J.), rendered October 9, 2008. The judgment convicted
defendant, upon a jury verdict, of assault in the second degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: Defendant was convicted following a jury trial of
assault in the second degree (Penal Law § 120.05 [2]). Defendant’s
contention that he was deprived of effective assistance of counsel by
defense counsel’s failure to call certain persons as alibi witnesses
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 King, 90 AD3d 1533, 1534, lv
denied 18 NY3d 959; People v Watson, 269 AD2d 755, 756, lv denied 95
NY2d 806). We reject defendant’s further contention that defense
counsel was ineffective in failing to conduct an adequate cross-
examination of two of the People’s witnesses. “ ‘Speculation that a
more vigorous cross-examination might have [undermined the credibility
of witnesses] does not establish ineffectiveness of counsel’ ” (People
v Bassett, 55 AD3d 1434, 1438, lv denied 11 NY3d 922). Viewing the
evidence, the law and the circumstances of this case, in totality and
as of the time of the representation, we conclude that defendant
received meaningful representation (see generally People v Baldi, 54
NY2d 137, 147).

     Defendant failed to preserve for our review his contention that
he was deprived of a fair trial based on various instances of judicial
misconduct (see People v Yut Wai Tom, 53 NY2d 44, 55-56), 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]; People
v Black, 38 AD3d 1283, 1286, lv denied 8 NY3d 982). Defendant also
                                 -2-                            27
                                                         KA 08-02370

failed to preserve for our review his contention that he was denied a
fair trial by prosecutorial misconduct (see People v Figgins, 72 AD3d
1599, 1600, lv denied 15 NY3d 893), and, in any event, that contention
is without merit. The alleged misconduct was not so egregious as to
deprive defendant of a fair trial (see People v Pringle, 71 AD3d 1450,
1451, lv denied 15 NY3d 777; People v Scott, 60 AD3d 1483, 1484, lv
denied 12 NY3d 859).




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