People v. Owens

251 A.D.2d 1037, 674 N.Y.S.2d 881, 1998 N.Y. App. Div. LEXIS 7102

Opinion

—Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him following a jury trial of assault in the first degree (Penal Law § 120.10 [1]), criminal possession of a weapon in the third degree (Penal Law § 265.02 [1]), burglary in the first degree (Penal Law § 140.30 [4]) and robbery in the first degree (Penal Law § 160.15 [4]). Defendant contends that his rights to due process of law and a fair trial under the Federal and State Constitutions were violated because he was “compelled” to wear khaki-colored prison garb at trial (see generally, Estelle v Williams, 425 US 501, reh denied 426 US 954; People v Roman, 35 NY2d 978). Defendant failed to raise that contention at trial. Rather, at his request, Supreme Court gave a cautionary instruction to the prospective jurors that they were not to consider defendant’s clothing in rendering a verdict. Defendant’s contention, therefore, has not been preserved for our review (see, CPL 470.05 [2]; People v Grimes, 112 AD2d 711, 712; see also, People v Farless, 245 AD2d 878). Defendant was not denied effective assistance of counsel (see, People v Baldi, 54 NY2d 137, 147). Defendant’s remaining contentions are unpreserved for our review (see, CPL 470.05 [2]), and we decline to exercise our power to review them as a matter of discretion in the interest of justice (see, CPL 470.15 [6] [a]). (Appeal from Judgment of Supreme Court, Monroe County, Bender, J. — Assault, 1st Degree.) Present — Lawton, J. P., Hayes, Pigott, Jr., Boehm and Fallon, JJ.