Opinion
KA 04-01452.
June 9, 2006.
Appeal from a judgment of the Supreme Court, Monroe County (Kenneth R. Fisher, J.), rendered October 17, 2002. The judgment convicted defendant, upon a jury verdict, of rape in the second degree.
EDWARD J. NOWAK, PUBLIC DEFENDER, ROCHESTER (WILLIAM CLAUSS OF COUNSEL), FOR DEFENDANT-APPELLANT.
MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (KELLY CHRISTINE WOLFORD OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Present: Pigott, Jr., P.J., Scudder, Kehoe, Pine and Hayes, JJ.
It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, of rape in the second degree (Penal Law § 130.30). "Defense counsel's concession of defendant's guilt of the second . . . count of the indictment was part of a reasonable trial strategy" and was not "`tantamount to a partial plea of guilt, thus requiring defendant's express consent'" ( People v. Chaney, 284 AD2d 998, 998, lv denied 96 NY2d 917, quoting People v. Barnes, 249 AD2d 227, 228, lv denied 92 NY2d 893). Contrary to the contention of defendant, the failure of the police to record his station house interrogation electronically does not require reversal ( see People v. Caballero, 23 AD3d 1031, 1032; People v. Boyd, 21 AD3d 1428, lv denied 6 NY3d 773; People v. Oglesby, 15 AD3d 888, 889, lv denied 4 NY3d 855). Defendant's remaining contention is not preserved for our review ( see CPL 470.05), and we decline to exercise our power to review it as a matter of discretion in the interest of justice ( see CPL 470.15 [a]).