Opinion
July 8, 1998
Appeal from Judgment of Onondaga County Court, Burke, J. — Rape, 3rd Degree.
Present — Green, J.P., Lawton, Wisner, Callahan and Boehm, JJ.
Judgment unanimously affirmed. Memorandum: County Court properly denied defendant's motion to suppress items of physical evidence without conducting a hearing. The motion, "made at the beginning of trial, was untimely and was not made in writing or supported by sworn allegations of fact ( see, CPL 255.20, 710.40 Crim. Proc., 710.60 Crim. Proc.)" ( People v. Massimi, 191 A.D.2d 969). Defendant failed to preserve for our review his challenge to the sufficiency of the evidence supporting the 9th, 10th and 11th counts of the indictment ( see, People v. Gray, 86 N.Y.2d 10, 19; People v. Thomas, 239 A.D.2d 246, lv denied 90 N.Y.2d 911; People v. Evans, 227 A.D.2d 121, lv denied 88 N.Y.2d 935) or his contention that he was denied a fair trial by prosecutorial misconduct ( see, People v. Church, 244 A.D.2d 953; People v. Albert, 222 A.D.2d 1005, lv denied 88 N.Y.2d 844, 979). We decline to exercise our power to review those contentions as a matter of discretion in the interest of justice ( see, CPL 470.15 [a]). Defendant was not denied effective assistance of counsel as the result of counsel's failure to make a timely written suppression motion ( see, People v. Rivera, 71 N.Y.2d 705, 709; People v. Fields, 251 A.D.2d 1072; People v. Godbold, 231 A.D.2d 910, lv denied 89 N.Y.2d 922), challenge the sufficiency of the evidence on the specific ground urged on appeal, or object to the alleged instances of prosecutorial misconduct ( see, People v. Leary, 145 A.D.2d 732, lv denied 73 N.Y.2d 1017). "We conclude that the cumulative effect of those and other alleged deficiencies, viewed in totality and as of the time of the representation, did not deprive defendant of effective assistance and that counsel's representation was meaningful" ( People v. Silverio-Mercedes, 239 A.D.2d 923, lv denied 90 N.Y.2d 943). We reject defendant's contention that the verdict is contrary to the weight of the evidence ( see, People v. Bleakley, 69 N.Y.2d 490, 495). "[C]redibility is a matter to be determined by the trier of the facts ( see, People v. Malizia, 62 N.Y.2d 755, 757, cert denied 469 U.S. 932) and the jury was in the best position to resolve the conflict in the testimony" ( People v. Conner, 195 A.D.2d 1078, lv denied 82 N.Y.2d 715; see, People v. Gaskin, 186 A.D.2d 995). We reject the contention of defendant that the preservation rule ( see, CPL 470.05) deprives him of his right to an effective appeal ( see generally, People v. Gray, supra; People v. Patterson, 39 N.Y.2d 288, 295, affd 432 U.S. 197). Finally, the sentence imposed is not unduly harsh or severe.