PEOPLE v. SYLAR (2005)

 Defendant appeals from a judgment convicting him upon a jury verdict of sodomy in the first degree (Penal Law former § 130.50 [3] ) and endangering the welfare of a child (§ 260.10[1] ).   Defendant failed to preserve for our review his challenge to the legal sufficiency of the evidence (see People v. Hines, 97 N.Y.2d 56, 61, 736 N.Y.S.2d 643, 762 N.E.2d 329, rearg. denied 97 N.Y.2d 678, 738 N.Y.S.2d 292, 764 N.E.2d 396;  People v. Williams, 17 A.D.3d 1043, 1045, 794 N.Y.S.2d 197;  People v. Harrison, 2 A.D.3d 1454, 769 N.Y.S.2d 436, lv. denied 2 N.Y.3d 740, 778 N.Y.S.2d 466, 810 N.E.2d 919).   In any event, defendant's contention lacks merit (see generally People v. Mateo, 2 N.Y.3d 383, 409-410, 779 N.Y.S.2d 399, 811 N.E.2d 1053, cert. denied 542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828;  People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Also contrary to the contention of defendant, he was not denied effective assistance of counsel (see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400;  People v. Bailey, 17 A.D.3d 1022, 1022-1023, 794 N.Y.S.2d 223).   The testimony of the victim elicited by defense counsel on cross-examination to which defendant objects was merely cumulative of her testimony on direct examination and defendant was not thereby deprived of a fair trial (see generally People v. Flores, 84 N.Y.2d 184, 187-188, 615 N.Y.S.2d 662, 639 N.E.2d 19).   Although defendant further contends that defense counsel should have called the other children who attended the slumber party to testify at trial, it appears from the record before us that those other children were asleep throughout the incident.   To the extent that defendant contends otherwise, his contention is based upon information outside the record and thus must be raised by way of a motion pursuant to CPL 440.10 (see People v. Jackson, 4 A.D.3d 773, 774, 771 N.Y.S.2d 431, lv. denied 2 N.Y.3d 801, 781 N.Y.S.2d 300, 814 N.E.2d 472;  People v. Nicholson, 269 A.D.2d 868, 869, 704 N.Y.S.2d 432, lv. denied 95 N.Y.2d 907, 716 N.Y.S.2d 647, 739 N.E.2d 1152).

 We further reject defendant's contention that Supreme Court erred in refusing to give an adverse inference charge regarding the discarded rape kit.  “In the absence of bad faith, the People's failure to ‘preserve evidentiary material of which no more can be said than that it could have been tested and the result may have helped defendant does not violate the Brady rule’ ” (People v. Bridges, 184 A.D.2d 1042, 1042, 584 N.Y.S.2d 360, lv. denied 80 N.Y.2d 973, 591 N.Y.S.2d 142, 605 N.E.2d 878;  see People v. Close, 103 A.D.2d 970, 971, 479 N.Y.S.2d 812).   Finally, defendant failed to preserve for our review his contention that the court's interested witness charge was improper (see generally CPL 470.05[2];  People v. Highsmith, 254 A.D.2d 768, 769, 679 N.Y.S.2d 758, lv. denied 92 N.Y.2d 983, 683 N.Y.S.2d 764, 706 N.E.2d 752, 92 N.Y.2d 1033, 684 N.Y.S.2d 498, 707 N.E.2d 453) and, in any event, defendant's contention lacks merit.

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

MEMORANDUM: