People v. Vogel

66 A.D.3d 1367, 885 N.Y.S.2d 678

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 2, 2009
• Status: Published

Opinion

Appeal from a judgment of the Herkimer County Court (Patrick L. Kirk, J.), rendered July 10, 2007. The judgment convicted defendant, upon a jury verdict, of rape in the second degree (13 counts), sexual abuse in the second 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 13 counts of rape in the second degree (Penal Law § 130.30 [1]) and one count each of sexual abuse in the second degree (§ 130.60 [2]) and endangering the welfare of a child (§ 260.10 [1]). County Court properly excluded evidence, under the rape shield law (CPL 60.42), concerning the victim’s purchase or use of a home pregnancy test inasmuch as defendant failed to make “a threshold showing of relevance” with respect to that evidence (People v Williams, 81 NY2d 303, 314 [1993]; see People v Perryman, 178 AD2d 916, 917 [1991], lv denied 79 NY2d 1005 [1992]). The court also properly refused to allow defendant to present the alibi testimony of two witnesses. Defendant failed to file a timely notice of alibi (see CPL 250.20 [1]), or to offer a reasonable excuse for that failure (see People v Watson, 269 AD2d 755, 756 [2000], lv denied 95 NY2d 806 [2000]; People v Bembry, 258 AD2d 921 [1999], lv denied 93 NY2d 897 [1999]). Furthermore, on the record before us, we reject defendant’s contention that defense counsel’s failure to file a timely notice of alibi constituted ineffective assistance of counsel (see People v Djanie, 31 AD3d 887, 888 [2006], lv denied 7 NY3d 866 [2006]). Finally, the sentence is not unduly harsh or severe. Present—Martoche, J.E, Smith, Feradotto, Garni and Green, JJ.