PEOPLE v. OWENS (1998)

Defendant appeals from a judgment convicting him following a jury trial of assault in the first degree (Penal Law § 120.10[1] ), criminal possession of a weapon in the third degree (Penal Law § 265.02[1] ), burglary in the first degree (Penal Law § 140.30[4] ) and robbery in the first degree (Penal Law § 160.15[4] ).   Defendant contends that his rights to due process of law and a fair trial under the Federal and State Constitutions were violated because he was “compelled” to wear khaki-colored prison garb at trial (see generally, Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126, reh. denied 426 U.S. 954, 96 S.Ct. 3182, 49 L.Ed.2d 1194;  People v. Roman, 35 N.Y.2d 978, 365 N.Y.S.2d 527, 324 N.E.2d 885).   Defendant failed to raise that contention at trial.   Rather, at his request, Supreme Court gave a cautionary instruction to the prospective jurors that they were not to consider defendant's clothing in rendering a verdict.   Defendant's contention, therefore, has not been preserved for our review (see, CPL 470.05[2];  People v. Grimes, 112 A.D.2d 711, 712, 492 N.Y.S.2d 198;  see also, People v. Farless, 245 A.D.2d 878, 666 N.Y.S.2d 832).   Defendant was not denied effective assistance of counsel (see, People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).   Defendant's remaining contentions are unpreserved for our review (see, CPL 470.05[2] ), and we decline to exercise our power to review them as a matter of discretion in the interest of justice (see, CPL 470.15[6][a] ).

Judgment unanimously affirmed.

MEMORANDUM: