PEOPLE v. WATSON (2000)

 Defendant was convicted upon a jury verdict of assault in the first degree (Penal Law § 120.10[1] ) for intentionally causing serious physical injury to his 2 1/212-year-old son by burning him with scalding water and assault in the second degree (Penal Law § 120.05[1] ) for beating him.   Defendant's contention that the evidence is legally insufficient to support the conviction is not preserved for our review (see, People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919).   Were we to reach the merits of that contention, we would conclude that the evidence is legally sufficient.   The standard for appellate review of legal sufficiency is the same regardless of whether the case is based on circumstantial or direct evidence (see, People v. Williams, 84 N.Y.2d 925, 926, 620 N.Y.S.2d 811, 644 N.E.2d 1367).   We conclude that there is a valid line of reasoning and permissible inferences to lead a rational person to the conclusion that defendant was the perpetrator of both assaults on the child and that both were intentional.   Defendant's girlfriend gave a statement to the police that implicated defendant in the assault, and the testimony at trial placed the child in defendant's sole custody at the time when the injuries occurred.   Further, sufficient evidence of defendant's intent to harm the child may be inferred from the surrounding circumstances of the assaults (see, People v. Steinberg, 79 N.Y.2d 673, 682, 584 N.Y.S.2d 770, 595 N.E.2d 845;  see also, People v. Hayes, 163 A.D.2d 165, 166, 558 N.Y.S.2d 532, affd. 78 N.Y.2d 876, 573 N.Y.S.2d 67, 577 N.E.2d 58).

 Supreme Court properly precluded defendant's alibi witnesses from testifying because defense counsel failed to file the appropriate notice (see, CPL 250.20) and failed to offer a reasonable excuse for that failure (see, People v. Millio, 226 A.D.2d 1071, 642 N.Y.S.2d 458, lv. denied 88 N.Y.2d 990, 649 N.Y.S.2d 397, 672 N.E.2d 623;  see also, People v. Bembry, 258 A.D.2d 921, 685 N.Y.S.2d 519, lv. denied 93 N.Y.2d 897, 689 N.Y.S.2d 709, 711 N.E.2d 985).   We note that failure to file an alibi notice may be considered ineffective assistance of counsel if it precludes a viable alibi defense (see, People v. Barret, 145 A.D.2d 842, 843, 535 N.Y.S.2d 829;  People v. Barber, 202 A.D.2d 978, 979, 610 N.Y.S.2d 416, lv. denied 83 N.Y.2d 908, 614 N.Y.S.2d 390, 637 N.E.2d 281).   That issue is not properly addressed on direct appeal, however, because it involves facts dehors the record (see, People v. McDonald, 255 A.D.2d 688, 681 N.Y.S.2d 112;  see also, People v. Alvarez, 223 A.D.2d 401, 636 N.Y.S.2d 331, lv. denied 88 N.Y.2d 980, 649 N.Y.S.2d 386, 672 N.E.2d 612;  People v. Donato, 202 A.D.2d 1010, 1011, 612 N.Y.S.2d 697, lv. denied 83 N.Y.2d 871, 613 N.Y.S.2d 132, 635 N.E.2d 301), including the content of the evidence precluded and whether the absence of that evidence prejudiced defendant.

We have reviewed defendant's remaining contentions and conclude that they are without merit.

Judgment unanimously affirmed.

MEMORANDUM: