Opinion
No. KA 06-01216.
February 6, 2009.
Appeal from a judgment of the Supreme Court, Onondaga County (John J. Brunetti, A.J.), rendered March 10, 2006. The judgment convicted defendant, upon a jury verdict, of criminal sexual act in the second degree, sexual abuse in the third degree and endangering the welfare of a child.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (ROBERT P. RICKERT OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (MATTHEW H. JAMES OF COUNSEL), FOR RESPONDENT.
Present: Martoche, J.P., Fahey, Green, Pine and Gorski, JJ.
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, inter alia, criminal sexual act in the second degree (Penal Law § 130.45). We reject the contention of defendant that he was denied effective assistance of counsel based on defense counsel's failure to cross-examine the victim with respect to a prior inconsistent statement she made ( see People v Rodriguez, 48 AD3d 312, lv denied 10 NY3d 939), and we conclude on the record before us that defendant received effective assistance of counsel ( see generally People v Baldi, 54 NY2d 137, 147). To the extent that defendant's contention is based on matters outside the record on appeal, it must be raised by way of a motion pursuant to CPL article 440 ( see People v Keith, 23 AD3d 1133, 1134-1135, lv denied 6 NY3d 815).