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

1220
KA 11-00574
PRESENT: SCUDDER, P.J., CENTRA, LINDLEY, SCONIERS, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MICHAEL WILSON, DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (CHRISTINE M. COOK OF
COUNSEL), FOR DEFENDANT-APPELLANT.

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


     Appeal from a judgment of the Onondaga County Court (William D.
Walsh, J.), rendered September 21, 2010. The judgment convicted
defendant, upon a jury verdict, of predatory sexual assault against a
child, rape 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 predatory sexual assault against a child
(Penal Law § 130.96), rape in the first degree (§ 130.35 [1]), and
endangering the welfare of a child (§ 260.10 [1]). We reject
defendant’s contention that County Court abused its discretion or
denied him his constitutional right to present a defense in precluding
the alibi testimony of a defense witness inasmuch as defendant failed
to file a notice of alibi pursuant to CPL 250.20 (see People v Watson,
269 AD2d 755, 756, lv denied 95 NY2d 806). Defendant failed to
preserve for our review his further contention that he was denied his
constitutional right to present a defense by the court’s preclusion of
the non-alibi testimony of that defense witness (see People v Lane, 7
NY3d 888, 889; People v Baxter, 108 AD3d 1158, 1160), 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 his contention that
the court erred in instructing the jury that his wife and daughter
were interested witnesses as a matter of law (see CPL 470.05 [2]). In
any event, although we agree with him that the court erred in giving
that instruction (see People v Fuentes, 52 AD3d 1297, 1299, lv denied
11 NY3d 736), we conclude that the error is harmless (see id.; see
generally People v Crimmins, 36 NY2d 230, 241-242). Contrary to
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                                                         KA 11-00574

defendant’s further contention, “there is no evidence in the record
indicating an abuse of discretion by the court in denying the
motion[s] for substitution of counsel where[, as here, the] defendant
failed to proffer specific allegations of a ‘seemingly serious
request’ that would require the court to engage in a minimal inquiry”
(People v Porto, 16 NY3d 93, 100; see People v Beriguette, 84 NY2d
978, 980, rearg denied 85 NY2d 924; People v Davis, 99 AD3d 1228,
1229, lv denied 20 NY3d 1010).

     We reject defendant’s contention that he was denied effective
assistance of counsel. Defense counsel’s failure to file a notice of
alibi and failure to object to the improper jury instruction
concerning defendant’s wife and daughter did not render her
representation less than meaningful (see generally People v Benevento,
91 NY2d 708, 712-713). To the extent that defendant contends that he
was denied effective assistance of counsel by defense counsel’s
failure to object to the court’s rulings with respect to two proposed
defense witnesses, as well as her failure to make a closing argument
at the end of the suppression hearing, that contention is without
merit. Defendant failed to demonstrate that those objections and that
closing argument, if made, would have been successful (see People v
Stultz, 2 NY3d 277, 287; People v Noguel, 93 AD3d 1319, 1320, lv
denied 19 NY3d 965). Finally, we conclude that the sentence is not
unduly harsh or severe.




Entered:   December 27, 2013                    Frances E. Cafarell
                                                Clerk of the Court
