Peoplev.Penwarden [4th Dept 1999

Appellate Division of the Supreme Court of New York, Fourth DepartmentMay 10, 1999

May 10, 1999

Appeal from Judgment of Supreme Court, Onondaga County, Brunetti, J. — Rape, 2nd Degree.

PRESENT: DENMAN, P. J., PINE, PIGOTT, JR., CALLAHAN AND BALIO, JJ.


Judgment unanimously affirmed. Memorandum: Defendant was convicted following a jury trial of rape in the second degree (Penal Law § 130.30), incest (Penal Law § 255.25), sexual abuse in the second degree (Penal Law § 130.60), and endangering the welfare of a child (Penal Law § 260.10). Defendant contends that he was denied effective assistance of counsel due to several alleged errors committed by his trial attorney. We disagree. A review of the record reveals that defendant's trial attorney was thoroughly familiar with the facts of the case, made appropriate pretrial motions, delivered adequate opening and closing statements, cross-examined the prosecution witnesses and presented defense witnesses effectively, and raised appropriate objections throughout the trial in furtherance of a reasonable trial strategy in the face of strong opposing evidence. Defendant's argument is a retrospective second-guessing of counsel's trial tactics because they were unsuccessful, and thus defendant has not demonstrated that he was denied meaningful representation ( see, People v. Baldi, 54 N.Y.2d 137, 146-147; People v. Almonte, 210 A.D.2d 911, lv denied 85 N.Y.2d 859; People v. Kroemer, 204 A.D.2d 1017, 1017-1018, lv denied 84 N.Y.2d 828, 1012).

Defendant's contention that the trial court erred in admitting testimony concerning defendant's refusal to submit to a polygraph test is unpreserved for our review ( see, CPL 470.05), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice ( see, CPL 470.15 [a]).

The sentence is neither unduly harsh nor severe. We have examined defendant's remaining contention that the court erred in admitting expert testimony on the intrafamilial child sexual abuse syndrome and conclude that it is without merit.