BOWMAN, JOSEPH M., PEOPLE v ( 2014 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1290
KA 12-00848
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, SCONIERS, AND WHALEN, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
JOSEPH M. BOWMAN, DEFENDANT-APPELLANT.
KELIANN M. ARGY-ELNISKI, ORCHARD PARK, FOR DEFENDANT-APPELLANT.
CINDY F. INTSCHERT, DISTRICT ATTORNEY, WATERTOWN (PATRICIA L. DZIUBA
OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Jefferson County Court (Kim H.
Martusewicz, J.), rendered May 7, 2012. The judgment convicted
defendant, upon a jury verdict, of predatory sexual assault against a
child 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 predatory sexual assault against a child (Penal
Law § 130.96) and endangering the welfare of a child (§ 260.10 [1]).
Defendant failed to preserve for our review his contention that the
conviction is not supported by legally sufficient evidence both
because he made only a general motion for a trial order of dismissal
and because he failed to renew his motion after presenting evidence
(see People v Roman, 85 AD3d 1630, 1630, lv denied 17 NY3d 821; see
also People v Hall, 106 AD3d 1513, 1514, lv denied ___ NY3d ___ [Oct
07, 2013]). In any event, we conclude that the conviction is
supported by legally sufficient evidence (see generally People v
Bleakley, 69 NY2d 490, 495). Furthermore, viewing the evidence in
light of the elements of the crimes as charged to the jury (see People
v Danielson, 9 NY3d 342, 349), we reject defendant’s contention that
the verdict is against the weight of the evidence (see generally
Bleakley, 69 NY2d at 495). “Although a different result would not
have been unreasonable, the jury was in the best position to assess
the credibility of the witnesses and, on this record, it cannot be
said that the jury failed to give the evidence the weight it should be
accorded” (People v Orta, 12 AD3d 1147, 1147, lv denied 4 NY3d 801).
Defendant’s contention that he was denied a fair trial based on
the prosecutor’s improper comments during summation and by an
instruction that County Court gave while charging the jury is not
preserved for our review inasmuch as defendant failed to object to
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KA 12-00848
those instances of alleged misconduct or to the jury instruction (see
CPL 470.05 [2]). We decline to exercise our power to review
defendant’s contention as a matter of discretion in the interest of
justice (see CPL 470.15 [6] [a]; see also People v Benton, 106 AD3d
1451, 1451-1452, lv denied 21 NY3d 1040; People v Nunez, 51 AD3d 1398,
1400, lv denied 11 NY3d 792). Finally, we reject defendant’s
contention that he was denied effective assistance of counsel inasmuch
as “the evidence, the law, and the circumstances of [this] . . . case,
viewed in totality and as of the time of the representation, reveal
that the attorney provided meaningful representation” (People v Baldi,
54 NY2d 137, 147).
Entered: January 3, 2014 Frances E. Cafarell
Clerk of the Court