Opinion
December 30, 1992
Appeal from the Allegany County Court, Feeman, Jr., J.
Present — Boomer, J.P., Green, Balio, Boehm and Fallon, JJ.
Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him of sexual abuse in the first degree and sodomy in the first degree, stemming from sexual conduct with his nine-year-old daughter. There is no merit to defendant's contentions that the verdict was not supported by legally sufficient evidence and that the verdict was contrary to the weight of the evidence (see, People v Bleakley, 69 N.Y.2d 490).
We also reject defendant's contention that he was deprived of effective assistance of counsel. The failure to make pretrial motions does not necessarily constitute ineffective assistance of counsel (People v Mandigo, 176 A.D.2d 386; People v Torrence, 135 A.D.2d 1075, 1076, lv denied 70 N.Y.2d 1011). To warrant the conclusion that pretrial inactivity rendered counsel's representation less than meaningful, defendant must show that he suffered prejudice, for example, that counsel failed to undertake an adequate investigation or was unprepared for trial (see, People v Torrence, supra; see also, People v Droz, 39 N.Y.2d 457) and that the failure to make motions was not premised on a legitimate strategy (see, People v Mandigo, supra, at 387). That burden has not been met in this case. Although defense counsel should have objected to the improper admission of evidence of prior uncharged crimes, that failure did not constitute ineffective assistance. Counsel effectively cross-examined prosecution witnesses, elicited a rational defense, and presented a strong and cogent summation. Under the circumstances, we conclude that trial counsel's representation of defendant, viewed in its entirety, was meaningful (see, People v Satterfield, 66 N.Y.2d 796, 798-799; People v Baldi, 54 N.Y.2d 137, 147).
Defendant's contentions that the court erred by admitting evidence of prior uncharged crimes and by admitting irrelevant and bolstering testimony of the victim's mother were not preserved for appellate review (see, CPL 470.05; People v Mann, 172 A.D.2d 1010, 1011, lv denied 78 N.Y.2d 969). Moreover, because defendant was tried without a jury, we presume that the trial court relied only upon competent evidence in reaching its decision (see, People v Mann, supra, at 1010-1011). Neither those alleged evidentiary errors nor alleged prosecutorial misconduct deprived defendant of a fair trial, and we decline to review those contentions in the interest of justice (see, CPL 470.15 [a]).