Opinion
August 17, 1987
Appeal from the Supreme Court, Queens County (Groh, J.).
Ordered that the judgment is affirmed.
The trial court did not abuse its discretion in denying the defendant's motion to change counsel particularly in light of the fact that the defendant had already been represented by five prior attorneys and also because the motion was made on the eve of trial after the Sandoval hearing had commenced and while the jury panel was waiting in the hallway outside the courtroom (see, People v. Arroyave, 49 N.Y.2d 264).
Since the defendant failed to challenge the facial validity of the third and fourth counts of the indictment in a pretrial motion to dismiss (CPL 210.20, 210.25 Crim. Proc.), this issue has not been preserved for appellate review (see, People v. Soto, 44 N.Y.2d 683; People v. Iannone, 45 N.Y.2d 589, 600; People v. Di Noia, 105 A.D.2d 799, lv denied sub nom. People v. Rapetti, 64 N.Y.2d 763).
Viewing the trial evidence in the light most favorable to the People, we find that the People presented prima facie cases concerning the charges of attempted rape in the first degree and attempted sodomy in the first degree (see, People v. Glover, 107 A.D.2d 821, affd 66 N.Y.2d 931, cert denied 476 U.S. 1161; People v. Pereau, 99 A.D.2d 591, affd 64 N.Y.2d 1055; People v. Troy, 119 A.D.2d 880, lv granted 68 N.Y.2d 774, appeal dismissed 68 N.Y.2d 998; People v. Robare, 109 A.D.2d 923). Moreover, upon the exercise of our factual review power, we are satisfied that the evidence established the defendant's guilt beyond a reasonable doubt and that the verdict was not against the weight of the evidence (CPL 470.15). The two complaining witnesses saw the defendant's face at close range, under good lighting conditions for at least five minutes. In addition, each of the complaining witnesses identified the defendant at a pretrial lineup, again at the pretrial hearing, and during the trial.
We have considered the defendant's remaining contentions and find them to be without merit. Niehoff, J.P., Weinstein, Rubin and Kooper, JJ., concur.