PEOPLE v. VASSAR (2006)

 Defendant appeals from a judgment convicting him after a jury trial of one count each of rape in the first degree (Penal Law § 130.35 [4] ) and endangering the welfare of a child (§ 260.10[1] ), and two counts of sexual abuse in the second degree (§ 130.60[2] ).   Defendant failed to preserve for our review his contention that counts two and three of the indictment were multiplicitous (see CPL 470.05[2] ), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).   Defendant also failed to preserve for our review his contention that County Court's Allen charge was coercive inasmuch as he did not raise a specific objection to the charge on that ground (see People v. McRae, 266 A.D.2d 241, 696 N.Y.S.2d 903, lv. denied 94 N.Y.2d 922, 923, 708 N.Y.S.2d 362, 729 N.E.2d 1161;  People v. Ramkisson, 245 A.D.2d 393, 666 N.Y.S.2d 447, lv. denied 91 N.Y.2d 976, 672 N.Y.S.2d 856, 695 N.E.2d 725).   In any event, we conclude that the charge as a whole was not coercive (see People v. Ford, 78 N.Y.2d 878, 573 N.Y.S.2d 442, 577 N.E.2d 1034).   Similarly, defendant failed to preserve for our review his contentions that the court violated CPL 310.10(2) and 270.40 (see People v. Morton, 23 A.D.3d 411, 803 N.Y.S.2d 433, lv. denied 6 N.Y.3d 756, 810 N.Y.S.2d 424, 843 N.E.2d 1164;  People v. Adams, 266 A.D.2d 831, 699 N.Y.S.2d 245, lv. denied 94 N.Y.2d 876, 705 N.Y.S.2d 8, 726 N.E.2d 485) and that he was denied a fair trial based on prosecutorial misconduct during the prosecutor's cross-examination of him and during the prosecutor's summation (see People v. Osuna, 65 N.Y.2d 822, 493 N.Y.S.2d 119, 482 N.E.2d 915;  People v. Dawkins, 203 A.D.2d 957, 611 N.Y.S.2d 726, lv. denied 84 N.Y.2d 824, 617 N.Y.S.2d 145, 641 N.E.2d 166).   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] ).

We reject the contention of defendant that he was deprived of effective assistance of counsel.   Defendant failed “to demonstrate the absence of strategic or other legitimate explanations for [defense] counsel's failure to [object at various points during the trial, and thus] it will be presumed that [defense] counsel acted in a competent manner and exercised professional judgment in [failing to object]” (People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698;  see generally People v. Taylor, 1 N.Y.3d 174, 177, 770 N.Y.S.2d 711, 802 N.E.2d 1109).   The record establishes that defense counsel presented a coherent defense consistent with the claim of defendant that he did not have sexual intercourse with the victim, and we conclude that he 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).

 Defendant failed to preserve for our review his contention that the evidence is legally insufficient to support the conviction because his motion to dismiss was not specifically directed at the ground advanced on appeal (see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919;  People v. Sweeney, 15 A.D.3d 917, 788 N.Y.S.2d 775, lv. denied 4 N.Y.3d 891, 798 N.Y.S.2d 736, 831 N.E.2d 981).   In any event, the evidence is legally sufficient to support the conviction and, contrary to defendant's further contention, the verdict is not 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).   Also contrary to defendant's contention, the sentence is not unduly harsh or severe.  “The mere fact that defendant was ultimately sentenced to a term of incarceration greater than that offered as a part of the plea bargain does not render his sentence [unduly harsh or severe]” (People v. Bradley [Appeal No. 1], 184 A.D.2d 1041, 1041, 585 N.Y.S.2d 264, lv. denied 80 N.Y.2d 927, 589 N.Y.S.2d 854, 855, 603 N.E.2d 959, 960).

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

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

MEMORANDUM: