Summary
affirming trial court's denial of motion to vacate conviction due to ineffective assistance because defendant "failed to include an affidavit of his trial counsel . . . or an explanation as to why such affidavit was not included"
Summary of this case from Jenkins v. GreeneOpinion
578-578A
March 26, 2002.
Judgment, Supreme Court, Bronx County (Lawrence Tonetti, J.), rendered May 28, 1997, convicting defendant, after a jury trial, of sodomy in the first degree and endangering the welfare of a child, and sentencing him to concurrent terms of 3 to 10 years and 1 year, respectively, and order, same court and Justice, entered March 29, 2001, which denied defendant's motion to vacate his conviction pursuant to CPL 440.10, unanimously affirmed.
CHRISTOPHER J. BLIRA-KOESSLER, for respondent.
THEODORE S. GREEN, for defendant-appellant.
Before: Williams, P.J., Tom, Saxe, Rubin, Friedman, JJ.
The court properly determined that the eight-year-old victim demonstrated sufficient intelligence and capacity, as well as a sufficient understanding of the obligation of an oath and the consequences of giving false testimony, to justify his being sworn as a witness (see, People v. Nisoff, 36 N.Y.2d 560, 566; People v. Parks, 41 N.Y.2d 36, 46; People v. Cordero, 257 A.D.2d 372, 373-374, lv denied 93 N.Y.2d 968). The victim understood that it was wrong to lie, stated that he would not lie to help his mother and understood that he would be punished if he did lie.
Defendant has not provided a sufficient record for this Court to evaluate his claim that the trial court improperly declined to release the "complaint" made by the victim's mother to the Victim Services Agency, since defendant has not subpoenaed this document. It is defendant's obligation to prepare a proper record for appeal (see, People v. Olivo, 52 N.Y.2d 309, 320; People v. Cortijo, 254 A.D.2d 125, lv denied 92 N.Y.2d 1030). Thus, even if we were to treat this document asRosario material ( but see, People v. Berkley, 157 A.D.2d 463, 465-466, 75 N.Y.2d 917), defendant would be unable to demonstrate any prejudice from the denial of his access to the document, as he must (People v. Fuller, 286 A.D.2d 650; CPL 240.75). In any event, the trial court examined the document in camera and found that it contained nothing material to the case, and that determination is entitled to great deference on appeal (see, People v. Arredondo, 226 A.D.2d 322, lv denied 88 N.Y.2d 964).
The court properly denied, without a hearing, defendant's motion to vacate his judgment of conviction on the ground of ineffective assistance of counsel. Defendant failed to include an affidavit of his trial counsel explaining why defendant's father was not called as a witness, or an explanation as to why such affidavit was not included (see, People v. Morales, 58 N.Y.2d 1008; People v. Gil, 285 A.D.2d 7, 11-12).
Defendant's remaining contentions are unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would reject them.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.