Opinion
No. KA 07-00547.
November 13, 2009.
Appeal from a judgment of the Monroe County Court (Richard A. Keenan, J.), rendered January 18, 2007. The judgment convicted defendant, upon a jury verdict, of course of sexual conduct against a child in the first degree.
DAVID M. KAPLAN, PENFIELD, FOR DEFENDANT-APPELLANT.
MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (GEOFFREY KAEUPER OF COUNSEL), FOR RESPONDENT.
Present: Hurlbutt, J.P., Martoche, Smith, Carni and Pine, 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 course of sexual conduct against a child in the first degree (Penal Law § 130.75 [a]). Defendant failed to preserve for our review his challenge to the legal sufficiency of the evidence by failing to renew his motion for a trial order of dismissal after presenting evidence ( see People v Hines, 97 NY2d 56, 61, rearg denied 97 NY2d 678). Contrary to the implicit contention of defendant, he did not preserve his challenge for our review by his post-trial motion pursuant to CPL 330.30 ( see People v Mills, 28 AD3d 1156, 1157, lv denied 7 NY3d 903). In any event, defendant's challenge lacks merit ( see generally People v Bleakley, 69 NY2d 490, 495). Furthermore, viewing the evidence in light of the elements of the crime as charged to the jury ( see People v Danielson, 9 NY3d 342, 349), we conclude that the verdict is not against the weight of the evidence ( see generally Bleakley, 69 NY2d at 495). "Great deference is accorded to the jury's resolution of credibility issues . . ., and it cannot be said herein that the jury failed to give the evidence the weight it should be accorded" ( People v McKinnon, 15 AD3d 842, 842, lv denied 4 NY3d 888).
Defendant also failed to preserve for our review his contention that he was denied a fair trial by prosecutorial misconduct ( see People v Cox, 21 AD3d 1361, 1363-1364, lv denied 6 NY3d 753), 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 [a]). We reject the further contention of defendant that he was denied effective assistance of counsel. Viewing the evidence, the law and the circumstances of the case as a whole and as of the time of the representation, we conclude that defendant was afforded meaningful representation ( see generally People v Baldi, 54 NY2d 137, 147). Finally, the sentence is not unduly harsh or severe.