People v. Clinkscales

277 A.D.2d 930, 716 N.Y.S.2d 260, 2000 N.Y. App. Div. LEXIS 11433

Opinion

—Judgment unanimously affirmed. Memorandum: Defendant failed to preserve for our review his contentions concerning the questioning of himself and his wife on cross-examination by the prosecutor (see, CPL 470.05 [2]), and 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]). Defendant contends that County Court erred in allowing the prosecutor to impeach her own witness with statements allegedly made by the witness to the prosecutor outside court (see, CPL 60.35). Although that contention was preserved for our review by a timely objection, no prejudice resulted because the witness did not admit making those statements and no independent proof of those statements was offered (see, CPL 470.05 [1]). In this nonjury case, the court is presumed to have considered only competent evidence in reaching the verdict (see, People v Limpert, 186 AD2d 1005, lv denied 81 NY2d 764; People v Marcano, 157 AD2d 533; People v Robinson, 143 AD2d 376, 377, lv denied 73 NY2d 789), and there is no basis in this record to conclude that the court did otherwise (see, People v Concepcion, 266 AD2d 227, lv denied 94 NY2d 917). Finally, we conclude that defendant received meaningful representation (see, People v Baldi, 54 NY2d 137, 147). (Appeal from Judgment of Erie County Court, Rogowski, J. — Assault, 2nd Degree.) Present— Pigott, Jr., P. J., Wisner, Kehoe and Balio, JJ.