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

388
KA 13-01451
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, CURRAN, AND TROUTMAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MICHAEL S. LEWIS, DEFENDANT-APPELLANT.


LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA (JON P. GETZ OF COUNSEL),
FOR DEFENDANT-APPELLANT.

R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (JAMES B. RITTS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Ontario County Court (Frederick G.
Reed, A.J.), rendered June 26, 2013. The judgment convicted
defendant, upon a jury verdict, of predatory sexual assault against a
child (eight counts), rape in the first degree (7 counts), rape in the
second degree (11 counts), rape in the third degree (7 counts), sexual
abuse in the first degree and endangering the welfare of a child (four
counts).

     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, inter alia, eight counts of predatory sexual assault
against a child (Penal Law § 130.96), defendant contends that County
Court failed to apprehend its power to exercise its discretion in
submitting representative counts to the jury inasmuch as the court
allowed the prosecutor to select the counts to submit (see generally
CPL 300.40 [6] [b]). Even assuming, arguendo, that defendant’s
contention is preserved for our review, we nevertheless reject it.
The record establishes that the court engaged in lengthy and detailed
discussions with both the prosecutor and defense counsel before
determining which counts would be submitted to the jury.

     Defendant failed to preserve for our review his contention that
the evidence is legally insufficient to support the conviction of
counts seven and eight of the indictment (see People v Gray, 86 NY2d
10, 19). 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 People v Bleakley, 69 NY2d 490, 495). We reject
defendant’s further contention that he was denied effective assistance
of counsel (see generally People v Baldi, 54 NY2d 137, 147). Finally,
                                 -2-                         388
                                                       KA 13-01451

the sentence is not unduly harsh or severe.




Entered:   April 29, 2016                     Frances E. Cafarell
                                              Clerk of the Court
