Opinion
2013-02-8
The PEOPLE of the State of New York, Respondent, v. John J. WITTMAN, Defendant–Appellant.
Appeal from a judgment of the Monroe County Court (John J. Connell, J.), rendered October 9, 2008. The judgment convicted defendant, upon a jury verdict, of assault in the second degree. Timothy P. Donaher, Public Defender, Rochester (Mary P. Davison of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Matthew Dunham of Counsel), for Respondent.
Appeal from a judgment of the Monroe County Court (John J. Connell, J.), rendered October 9, 2008. The judgment convicted defendant, upon a jury verdict, of assault in the second degree.
Timothy P. Donaher, Public Defender, Rochester (Mary P. Davison of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Matthew Dunham of Counsel), for Respondent.
MEMORANDUM:
Defendant was convicted following a jury trial of assault in the second degree (Penal Law § 120.05[2] ). Defendant's contention that he was deprived of effective assistance of counsel by defense counsel's failure to call certain persons as alibi witnesses is based on matters outside the record on appeal, and thus the proper procedural vehicle for raising that contention is by way of a motion pursuant to CPL 440.10 ( see People v. King, 90 A.D.3d 1533, 1534, 935 N.Y.S.2d 418,lv. denied18 N.Y.3d 959, 944 N.Y.S.2d 488, 967 N.E.2d 713;People v. Watson, 269 A.D.2d 755, 756, 704 N.Y.S.2d 396,lv. denied95 N.Y.2d 806, 711 N.Y.S.2d 174, 733 N.E.2d 246). We reject defendant's further contention that defense counsel was ineffective in failing to conduct an adequate cross-examination of two of the People's witnesses. “ ‘Speculation that a more vigorous cross-examination might have [undermined the credibility of witnesses] does not establish ineffectiveness of counsel’ ” ( People v. Bassett, 55 A.D.3d 1434, 1438, 866 N.Y.S.2d 473,lv. denied11 N.Y.3d 922, 874 N.Y.S.2d 7, 902 N.E.2d 441). Viewing the evidence, the law and the circumstances of this case, in totality and as of the time of the representation, we conclude that defendant received meaningful representation ( see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).
Defendant failed to preserve for our review his contention that he was deprived of a fair trial based on various instances of judicial misconduct ( see People v. Yut Wai Tom, 53 N.Y.2d 44, 55–56, 439 N.Y.S.2d 896, 422 N.E.2d 556), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice ( seeCPL 470.15[6][a]; People v. Black, 38 A.D.3d 1283, 1286, 832 N.Y.S.2d 375,lv. denied8 N.Y.3d 982, 838 N.Y.S.2d 485, 869 N.E.2d 661). Defendant also failed to preserve for our review his contention that he was denied a fair trial by prosecutorial misconduct ( see People v. Figgins, 72 A.D.3d 1599, 1600, 899 N.Y.S.2d 702,lv. denied15 N.Y.3d 893, 912 N.Y.S.2d 581, 938 N.E.2d 1016), and, in any event, that contention is without merit. The alleged misconduct was not so egregious as to deprive defendant of a fair trial ( see People v. Pringle, 71 A.D.3d 1450, 1451, 896 N.Y.S.2d 772,lv. denied15 N.Y.3d 777, 907 N.Y.S.2d 465, 933 N.E.2d 1058;People v. Scott, 60 A.D.3d 1483, 1484, 875 N.Y.S.2d 728,lv. denied12 N.Y.3d 859, 881 N.Y.S.2d 671, 909 N.E.2d 594).
*912It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.