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

633
KA 11-02345
PRESENT: SCUDDER, P.J., FAHEY, CARNI, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

LUCAS WEST, DEFENDANT-APPELLANT.


LUCILLE M. RIGNANESE, SYRACUSE, FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Onondaga County
(John J. Brunetti, A.J.), rendered May 13, 2011. The judgment
convicted defendant, upon a jury verdict, of course of sexual conduct
against a child in the first degree, rape in the third degree and
course of sexual conduct against a child in the second 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 course of sexual conduct against a child in the
first degree (Penal Law § 130.75 [1] [b]), rape in the third degree (§
130.25 [2]), and course of sexual conduct against a child in the
second degree (§ 130.80 [1] [b]). Contrary to defendant’s contention,
Supreme Court did not err in denying his motion pursuant to CPL 330.30
to set aside the verdict. “ ‘Pursuant to CPL 330.30 (1), following
the issuance of a verdict and before sentencing a court may set aside
a verdict on “[a]ny ground appearing in the record which, if raised
upon an appeal from a prospective judgment of conviction, would
require a reversal or modification of the judgment as a matter of law
by an appellate court” ’ (People v Benton, 78 AD3d 1545, 1546 [2010],
lv denied 16 NY3d 828 [2011]). ‘The power granted a Trial Judge is,
thus, far more limited than that of an intermediate appellate court,
which is authorized to determine not only questions of law but issues
of fact . . . , to reverse or modify a judgment when the verdict is
against the weight of the evidence . . . , and to reverse “[a]s a
matter of discretion in the interest of justice” ’ (People v Carter,
63 NY2d 530, 536 [1984])” (People v Rohadfox, 114 AD3d 1217, 1218).

     Defendant contends that the court erred in denying his CPL 330.30
motion because defense counsel’s failure to investigate and pursue an
alibi defense constituted ineffective assistance of counsel (see
People v Taylor, 97 AD3d 1139, 1141, lv denied 19 NY3d 1029; see
                                 -2-                           633
                                                         KA 11-02345

generally People v Stultz, 2 NY3d 277, 287, rearg denied 3 NY3d 702;
People v Henry, 95 NY2d 563, 565-566). An alibi defense is “based on
the physical impossibility of a defendant’s guilt by placing the
defendant in a location other than the scene of the crime at the
relevant time” (Black’s Law Dictionary 84 [9th ed 2009]) and, here,
even if the evidence in question had been admitted at trial, it would
not have established an alibi for defendant. “A defendant is not
denied effective assistance of trial counsel merely because counsel
does not make a motion or argument that has little or no chance of
success” (Stultz, 2 NY3d at 287), and thus the court properly denied
defendant’s motion insofar as it alleged ineffective assistance of
counsel based on the failure to pursue an alibi defense (see generally
Carter, 63 NY2d at 536).

     Defendant also contends that he was denied effective assistance
of counsel for a litany of reasons not addressed by the CPL 330.30
motion. To the extent that those instances of alleged ineffective
assistance of counsel specified by defendant are based on matters
outside the record on appeal, they must be raised by way of a motion
pursuant to CPL article 440 (see generally People v Russell, 83 AD3d
1463, 1465, lv denied 17 NY3d 800). To the extent that those
instances of alleged ineffective assistance are based on defense
counsel’s failure to make a particular motion or argument, we again
note that an attorney’s failure to “make a motion or argument that has
little or no chance of success” does not amount to ineffective
assistance (Stultz, 2 NY3d at 287). To the extent that defendant
contends that defense counsel was ineffective in failing to retain an
expert witness, we reject that contention. “ ‘Defendant has not
demonstrated that such testimony was available, that it would have
assisted the jury in its determination or that he was prejudiced by
its absence’ ” (People v Jurgensen, 288 AD2d 937, 938, lv denied 97
NY2d 684; see People v Aikey, 94 AD3d 1485, 1487, lv denied 19 NY3d
956). Moreover, 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).

     Viewing the evidence in light of the crimes 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 People
v Bleakley, 69 NY2d 490, 495). “[R]esolution of issues of
credibility, as well as the weight to be accorded to the evidence
presented, are primarily questions to be determined by the jury”
(People v Witherspoon, 66 AD3d 1456, 1457, lv denied 13 NY3d 942
[internal quotation marks omitted]). Defendant failed to preserve for
our review his contention that the indictment was facially deficient
(see CPL 470.05 [2]; see also People v Soto, 44 NY2d 683, 684), and we
decline to exercise our power to address it as a matter of discretion
in the interest of justice (see CPL 470.15 [6] [a]).

     Contrary to defendant’s further contention, the court did not err
in admitting in evidence testimony of defendant’s abuse of the victims
that occurred after each victim turned 13 years old (cf. Penal Law §§
                                 -3-                           633
                                                         KA 11-02345

130.75 [1] [b]; 130.80 [1] [b]), inasmuch as such evidence
“ ‘complete[d] the narrative of the events charged in the indictment .
. . , and it also provided necessary background information’ ” (People
v Workman, 56 AD3d 1155, 1156, lv denied 12 NY3d 789; see generally
People v Leeson, 12 NY3d 823, 826-827). Defendant’s additional
contention that Penal Law §§ 130.75 and 130.80 are unconstitutionally
vague is not properly before us. Defendant failed to give the
requisite notice to the Attorney General (see Executive Law § 71 [3];
People v Woodard, 83 AD3d 1440, 1442, lv denied 17 NY3d 803), and he
failed to preserve that contention for our review (see Woodard, 83
AD3d at 1442).

     Finally, we reject the contention of defendant that cumulative
errors deprived him of a fair trial.




Entered:   June 20, 2014                        Frances E. Cafarell
                                                Clerk of the Court
