Opinion
November 28, 1995
Appeal from the Supreme Court, Bronx County (Phylis Skloot Bamberger, J.).
Defendant's challenge to the legal sufficiency of the evidence is unpreserved as a matter of law ( People v Gray, 86 N.Y.2d 10), and in any event without merit. Defendant also failed to preserve by timely objection or other means of making his claim known that the trial court was biased against him ( People v Burke, 211 A.D.2d 598, lv denied 85 N.Y.2d 907), which, were we to review it, we would find it to be a speculative, gender-biased attack on the trial court. Defendant's motion to set aside the verdict on the ground of newly discovered evidence was properly denied since the proffered evidence was not new, there was no reasonable probability that it would have affected the outcome, there was an absence of due diligence in defendant's presentation of the evidence, and the evidence, if believed, was at best cumulative, collateral and nonmaterial ( see, People v Suarez, 98 A.D.2d 678; People v Batista, 172 A.D.2d 386, lv denied 78 N.Y.2d 961). By not seeking relief pursuant to CPL 440.10, defendant has failed to present a record adequate to review trial counsel's purported tactical ineffectiveness ( People v Love, 57 N.Y.2d 998, 1000; People v Brown, 45 N.Y.2d 852, 854). His claim that he was deprived of his right to testify before the Grand Jury, due to counsel's neglect, is completely dehors the record and thus not susceptible to review.
We have considered defendant's remaining contentions and find them to be without merit.
Concur — Rosenberger, J.P., Rubin, Kupferman, Asch and Mazzarelli, JJ.