PEOPLE v. WALKER

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Supreme Court, Appellate Division, Fourth Department, New York.

PEOPLE of the State of New York, Plaintiff-Respondent, v. Quincy L. WALKER, Defendant-Appellant.

Decided: March 31, 1999

Present:  DENMAN, P.J., LAWTON, HAYES, PIGOTT, JR., and HURLBUTT, JJ. John C. Tunney of counsel, Steuben County District Attorney's Office, Bath, for plaintiff-respondent. John A. Cirando of counsel, D.J. & J.A. Cirando, Syracuse, for defendant-appellant.

Defendant appeals from a judgment convicting him of sodomy in the first degree (Penal Law § 130.50[3] ) and sexual abuse in the first degree (three counts) (Penal Law § 130.65[3] ) and sentencing him to consecutive terms of incarceration aggregating 15 to 30 years.   Defendant contends that he was denied his right to a speedy trial (see, CPL 30.30);  that he was denied a fair trial by being presented to the jury in prison clothing;  that the verdict is against the weight of the evidence;  that defendant was denied effective assistance of counsel;  and that he was denied a fair trial by the prosecutor's summation.

 Defendant failed to move to dismiss the indictment on CPL 30.30 grounds.   Thus, the statutory speedy claim is waived and may not be raised for the first time on appeal (see, People v. Jordan, 62 N.Y.2d 825, 826, 477 N.Y.S.2d 605, 466 N.E.2d 145;  People v. Adams, 38 N.Y.2d 605, 607, 381 N.Y.S.2d 847, 345 N.E.2d 318).

 Given the failure of defendant to object to wearing prison garb, his contention that he was thereby denied a fair trial is not preserved for our review (see, People v. Owens, 251 A.D.2d 1037, 674 N.Y.S.2d 881, lv. denied 92 N.Y.2d 928, 680 N.Y.S.2d 470, 703 N.E.2d 282;  People v. Grimes, 112 A.D.2d 711, 712, 492 N.Y.S.2d 198).   In any event, the record does not support the contention that defendant was compelled to wear prison clothing (see, People v. Grimes, supra, at 712, 492 N.Y.S.2d 198), and the curative instruction given by County Court dispelled any prejudice (see, People v. Gallan, 78 A.D.2d 904, 433 N.Y.S.2d 206).

 Defendant's conviction was based on the credible testimony of the then 11-year-old victim and defendant's own incriminating statement.   The jury did not fail to give the evidence the weight it should be accorded (see, People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).

 Defendant was not denied effective assistance of counsel.   Defense counsel vigorously cross-examined the People's witnesses, exposed certain inconsistencies in their testimony, followed a definite and coherent defense strategy, and gave opening and closing statements and presented evidence supporting that defense strategy.   Defendant thus received meaningful representation (see, People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).

 Finally, we conclude that defendant was not denied a fair trial by the prosecutor's summation, which constituted fair response to defense counsel's summation (see, People v. Tanksley, 258 A.D.2d 952, 685 N.Y.S.2d 564;  People v. Maisonet, 172 A.D.2d 274, 568 N.Y.S.2d 96, lv. denied 78 N.Y.2d 969, 574 N.Y.S.2d 949, 580 N.E.2d 421).   In any event, the prosecutor's comments were isolated and not so pervasive or egregious as to warrant a reversal (see, People v. Pritchett, 248 A.D.2d 967, 968, 670 N.Y.S.2d 157, lv. denied 92 N.Y.2d 929, 680 N.Y.S.2d 470, 703 N.E.2d 282).

Judgment unanimously affirmed.

MEMORANDUM: