PEOPLE v. KYLE (2008)

 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[1] ).  “By failing to move to dismiss the indictment within five days of his arraignment, defendant has waived his contention that he was denied his right to testify before the Grand Jury in a timely manner and thus that the indictment should be dismissed” (People v. Di Fondi, 275 A.D.2d 1018, 713 N.Y.S.2d 599, lv. denied 95 N.Y.2d 933, 721 N.Y.S.2d 610, 744 N.E.2d 146;  see CPL 190.50[5][c];  People v. Thomas, 24 A.D.3d 949, 806 N.Y.S.2d 277, lv. denied 6 N.Y.3d 819, 812 N.Y.S.2d 458, 845 N.E.2d 1289).   We reject defendant's contention that the verdict is against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Defendant failed to preserve for our review his further contentions that he was deprived of a fair trial by prosecutorial misconduct during summation (see People v. Humphrey, 15 A.D.3d 683, 686, 789 N.Y.S.2d 325, lv. denied 5 N.Y.3d 763, 801 N.Y.S.2d 257, 258, 834 N.E.2d 1267, 1268) and that the evidence is legally insufficient to support the conviction (see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919).   We decline to exercise our power to review those contentions as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).   Contrary to defendant's contention, County Court properly granted the People's motion to disqualify defendant's retained counsel prior to trial based upon counsel's representation of the victim's father, a potential prosecution witness (see generally People v. Liuzzo, 167 A.D.2d 963, 562 N.Y.S.2d 303, appeal dismissed 77 N.Y.2d 866, 568 N.Y.S.2d 346, 569 N.E.2d 1025).   Finally, defense counsel provided meaningful representation (see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400), and defendant's sentence is not unduly harsh or severe.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

MEMORANDUM: