People v. Gardner

Appellate Division of the Supreme Court of New York

People v. Gardner

59 A.D.3d 1009, 872 N.Y.S.2d 311

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 6, 2009

StatusPublished

This text of 59 A.D.3d 1009 (People v. Gardner) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Gardner, 59 A.D.3d 1009, 872 N.Y.S.2d 311 (N.Y. Ct. App. 2009).

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Opinion

Appeal from a judgment of the Supreme Court, Onondaga [1010]*1010County (John J. Brunotti, A.J.), rendered March 10, 2006. The judgment convicted defendant, upon a jury verdict, of criminal sexual act in the second degree, sexual abuse in the third degree and endangering the welfare of a child.

It is hereby ordered that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, criminal sexual act in the second degree (Penal Law § 130.45 [1]). We reject the contention of defendant that he was denied effective assistance of counsel based on defense counsel’s failure to cross-examine the victim with respect to a prior inconsistent statement she made (see People v Rodriguez, 48 AD3d 312 [2008], lv denied 10 NY3d 939 [2008]), and we conclude on the record before us that defendant received effective assistance of counsel (see generally People v Baldi, 54 NY2d 137, 147 [1981]). To the extent that defendant’s contention is based on matters outside the record on appeal, it must be raised by way of a motion pursuant to CPL article 440 (see People v Keith, 23 AD3d 1133, 1134-1135 [2005], lv denied 6 NY3d 815 [2006]). Present—Martoche, J.P., Fahey, Green, Pine and Gorski, JJ.

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Appeal from a judgment of the Supreme Court, Onondaga [1010]*1010County (John J. Brunotti, A.J.), rendered March 10, 2006. The judgment convicted defendant, upon a jury verdict, of criminal sexual act in the second degree, sexual abuse in the third degree and endangering the welfare of a child.

It is hereby ordered that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, criminal sexual act in the second degree (Penal Law § 130.45 [1]). We reject the contention of defendant that he was denied effective assistance of counsel based on defense counsel’s failure to cross-examine the victim with respect to a prior inconsistent statement she made (see People v Rodriguez, 48 AD3d 312 [2008], lv denied 10 NY3d 939 [2008]), and we conclude on the record before us that defendant received effective assistance of counsel (see generally People v Baldi, 54 NY2d 137, 147 [1981]). To the extent that defendant’s contention is based on matters outside the record on appeal, it must be raised by way of a motion pursuant to CPL article 440 (see People v Keith, 23 AD3d 1133, 1134-1135 [2005], lv denied 6 NY3d 815 [2006]). Present—Martoche, J.P., Fahey, Green, Pine and Gorski, JJ.

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Bluebook (online)

59 A.D.3d 1009, 872 N.Y.S.2d 311, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-gardner-nyappdiv-2009.

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