PEOPLE v. MOORE (2007)

 Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, sodomy in the first degree (Penal Law § 130.50 [4] ), attempted rape in the first degree (§§ 110.00, 130.35[4] ), four counts of sexual abuse in the first degree (§ 130.65[1] ), and three counts of forcible touching (§ 130.52[2] ).   Defendant's contention with respect to the denial of effective assistance of counsel is based upon defense counsel's alleged failure to provide an adequate alibi defense, including, inter alia, the alleged failure to locate and interview potential defense witnesses.   Defendant's contention largely “turn[s] on matters that are not reflected in the record [and is therefore] not reviewable on direct appeal and would require a further record to be developed by way of a CPL 440.10 motion” (People v. Lopez, 28 A.D.3d 234, 235, 812 N.Y.S.2d 99, lv. denied 7 N.Y.3d 758, 819 N.Y.S.2d 884, 853 N.E.2d 255;  see People v. Cosby, 271 A.D.2d 353, 354, 708 N.Y.S.2d 58, lv. denied 95 N.Y.2d 904, 716 N.Y.S.2d 645, 739 N.E.2d 1150).   On the record before us, we cannot agree with defendant that defense counsel failed to provide an adequate alibi defense (see generally People v. Benevento, 91 N.Y.2d 708, 712-714, 674 N.Y.S.2d 629, 697 N.E.2d 584).   Although defendant contends that defense counsel was ineffective in failing to file a notice of alibi and to request an alibi charge, we note that defendant's wife was permitted to testify concerning defendant's whereabouts on the night of the alleged first offense and that Supreme Court's charge, taken as a whole, adequately informed the jury that the burden of proof was on the People at all times, including on the issue whether defendant was the person who had sodomized the victim (see People v. Green, 31 A.D.3d 1048, 1050-1051, 818 N.Y.S.2d 862, lv. denied 7 N.Y.3d 902, 826 N.Y.S.2d 611, 860 N.E.2d 73).

 Defendant further contends that reversal is required based on the court's failure to make an inquiry with respect to defendant's request for substitution of counsel.  “[T]he failure to make a minimal inquiry [into defendant's reasons for requesting substitution of counsel] does not mandate reversal when a defendant's request is based on ․ assertions that do not suggest a serious possibility of good cause for substitution” (People v. Frayer, 215 A.D.2d 862, 863, 627 N.Y.S.2d 107, lv. denied 86 N.Y.2d 794, 632 N.Y.S.2d 507, 656 N.E.2d 606;  see People v. Stevenson, 36 A.D.3d 634, 831 N.Y.S.2d 74).   Here, defendant's request was based upon defense counsel's failure to file a certain motion, and the record establishes that defense counsel filed that motion.   Thus, there was no longer any suggestion of a serious possibility of a genuine conflict of interest, and the court did not err in failing to make a minimal inquiry.

 We further reject the contention of defendant that the court erred in denying his request for an adjournment to obtain the testimony of a witness.   Defendant failed to demonstrate that a diligent and good faith attempt was made to procure the presence of the witness at trial (see People v. Nieves, 290 A.D.2d 371, 371-372, 737 N.Y.S.2d 73;  People v. Perez, 249 A.D.2d 492, 493, 671 N.Y.S.2d 675, lv. denied 92 N.Y.2d 903, 680 N.Y.S.2d 67, 702 N.E.2d 852), that the witness would in fact appear following the adjournment (see Nieves, 290 A.D.2d at 371-372, 737 N.Y.S.2d 73), and that the witness could be produced within a reasonable period of time (see People v. McCray, 284 A.D.2d 111, 725 N.Y.S.2d 546, lv. denied 96 N.Y.2d 921, 732 N.Y.S.2d 638, 758 N.E.2d 664).   Also lacking in merit is defendant's contention that the indictment and bill of particulars lacked the necessary specificity required because they alleged acts that occurred “on or about August 3-31, 2002 at an unknown time,” “on or about November 1-30, 2003 at an unknown time” and “on or about December 1-31, 2003 at an unknown time.”  “[I]t previously has been held in similar situations that given the age of the victim, the time between the commission of the crimes and the date of the report of the crimes and the fact that time was not a material element of the crimes charged, the counts of the indictment [as supplemented by the bill of particulars] were adequate to comport with due process” (People v. Humphrey, 30 A.D.3d 766, 767, 816 N.Y.S.2d 393, lv. denied 7 N.Y.3d 813, 822 N.Y.S.2d 488, 855 N.E.2d 804;  see People v. Oglesby, 12 A.D.3d 857, 858-859, 787 N.Y.S.2d 401, lv. denied 5 N.Y.3d 792, 801 N.Y.S.2d 813, 835 N.E.2d 673;  People v. Khatib, 166 A.D.2d 668, 668-669, 561 N.Y.S.2d 88).

 We further reject the contention of defendant that his right of confrontation was denied when the court limited defense counsel's cross-examination of the victim concerning her relationship with her parents.   The relationship between the victim and her parents has no bearing on the issue whether the victim truthfully confided in her uncle with respect to defendant's conduct.   The court has broad discretion to restrict a defendant from cross-examining a witness on matters that are “irrelevant to any issue to be considered by the jury” (People v. Nunez, 7 A.D.3d 298, 299, 776 N.Y.S.2d 551, lv. denied 3 N.Y.3d 679, 784 N.Y.S.2d 17, 817 N.E.2d 835), and we conclude under the circumstances of this case that defendant's right of confrontation was not violated (see id.).   We also reject the contention of defendant that he was denied a fair trial based on prosecutorial misconduct on summation.   The prosecutor's comments were not “so egregious” as to warrant reversal (People v. Mott, 94 A.D.2d 415, 418, 465 N.Y.S.2d 307), nor did they cause “such substantial prejudice to the defendant that he [was] denied due process of law” (id. at 419, 465 N.Y.S.2d 307).

 The sentence is not unduly harsh or severe.   We agree with defendant, however, that counts 7, 10, and 14 of the indictment, charging him with forcible touching, are lesser inclusory concurrent counts of counts 6, 9, and 13 of the indictment, charging him with sexual abuse in the first degree (see People v. Robertson, 217 A.D.2d 989, 990, 630 N.Y.S.2d 438, lv. denied 86 N.Y.2d 846, 634 N.Y.S.2d 455, 658 N.E.2d 233).   Although the People are correct that defendant's contention is unpreserved for our review, preservation is not required (see id.), and counts 7, 10, and 14 must be dismissed as a matter of law because “a verdict of guilty upon the greater [count] is deemed a dismissal of every lesser [inclusory concurrent count]” (People v. Lee, 39 N.Y.2d 388, 390, 384 N.Y.S.2d 123, 348 N.E.2d 579;  see CPL 300.40[3][b] ).  To the extent that prior decisions of this Court require preservation (see e.g. People v. Givens, 284 A.D.2d 997, 727 N.Y.S.2d 371, lv. denied 97 N.Y.2d 641, 735 N.Y.S.2d 498, 761 N.E.2d 3;  People v. Dunbar, 275 A.D.2d 968, 713 N.Y.S.2d 437, lv. denied 96 N.Y.2d 734, 722 N.Y.S.2d 800, 745 N.E.2d 1023;  People v. Slater, 270 A.D.2d 925, 705 N.Y.S.2d 777, lv. denied 95 N.Y.2d 858, 714 N.Y.S.2d 9, 736 N.E.2d 870), they are no longer to be followed.   We therefore modify the judgment accordingly.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously modified on the law by reversing those parts convicting defendant of forcible touching and dismissing counts 7, 10, and 14 of the indictment and as modified the judgment is affirmed.

MEMORANDUM: