         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
1097
KA 11-01409
PRESENT: FAHEY, J.P., PERADOTTO, CARNI, WHALEN, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MARK A. YOUNGS, DEFENDANT-APPELLANT.


KATHLEEN P. REARDON, ROCHESTER, FOR DEFENDANT-APPELLANT.

BROOKS T. BAKER, DISTRICT ATTORNEY, BATH (AMANDA M. CHAFEE OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Steuben County Court (Peter C.
Bradstreet, J.), rendered June 27, 2011. The judgment convicted
defendant, upon a nonjury verdict, of 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: On appeal from a judgment convicting him, following
a nonjury trial, of rape in the first degree (Penal Law § 130.35 [3])
and endangering the welfare of a child (§ 260.10 [1]), defendant
contends that he was denied effective assistance of counsel as a
result of defense counsel’s failure to make a motion to dismiss the
indictment based on the denial of his statutory right to a speedy
trial (see CPL 30.30 [1] [a]). The record on appeal is inadequate to
enable us to determine whether such a motion would have been
successful and whether defense counsel’s failure to make that motion
deprived defendant of meaningful representation (see People v Obert, 1
AD3d 631, 632, lv denied 2 NY3d 764), and thus defendant’s contention
is appropriately raised by way of a motion pursuant to CPL article 440
(see id.; see also People v Oliver, 24 AD3d 1305, 1305, lv denied 6
NY3d 836). To the extent that we reached a contrary result in People
v Manning (52 AD3d 1295), that case is no longer to be followed.

     Defendant asserts that certain exhibits admitted in evidence at
trial, i.e., photographs, could not be located for purposes of this
appeal, thereby precluding meaningful appellate review. Those
exhibits, however, were provided to us upon our request and thus
defendant’s contention is moot. We reject defendant’s contention that
New York lacked criminal jurisdiction (see CPL 20.20). Preliminarily,
we note that preservation of that contention is not required (see
People v Carvajal, 6 NY3d 305, 311-312). We nevertheless conclude
that the People provided enough evidence to establish that “the
                                 -2-                          1097
                                                         KA 11-01409

alleged conduct or some consequence of it must have occurred within
the State” (People v McLaughlin, 80 NY2d 466, 471).

     Defendant’s contention that the evidence is legally insufficient
to support the conviction of rape is not preserved for our review
because defendant failed to renew his motion for a trial order of
dismissal after presenting proof (see People v Hines, 97 NY2d 56, 61,
rearg denied 97 NY2d 678). Viewing the evidence in light of the
elements of the crimes in this nonjury trial (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). Defendant’s contention that the search warrant was stale is not
preserved for our review (see People v Martinez, 39 AD3d 1246, 1246-
1247, lv denied 9 NY3d 878). Likewise, defendant failed to preserve
for our review his contention that County Court erred in refusing to
consider lesser included offenses (see People v Buckley, 75 NY2d 843,
846). We decline to exercise our power to review those contentions as
a matter of discretion in the interest of justice (see CPL 470.15 [6]
[a]). Finally, we conclude that the sentence is not unduly harsh or
severe.




Entered:   December 21, 2012                    Frances E. Cafarell
                                                Clerk of the Court
