It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him following a jury trial of course of sexual conduct against a child in the first degree (Penal Law § 130.75 [1] [a]), course of sexual conduct against a child in the second degree (§ 130.80 [1] [a]), and sexual abuse in the first degree (§ 130.65 [1]).
Contrary to defendant’s contention, viewing the evidence in light of the elements of the crimes as charged to the jury, we conclude that the verdict is not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 349 [2007]; see generally People v Bleakley, 69 NY2d 490, 495 [1987]). The victims testified to specific details about defendant’s multiple acts of sexual conduct with them between August 1996 and June 1998, when they were between the ages of five and seven years old. One of the victims also testified to an act of sexual abuse by defendant when she was 12 years old. During a recorded telephone conversation with one of the victims, defendant made inculpatory statements (see People v Smith, 126 AD3d 1528, 1529 [2015]). When that victim asked defendant about why he sexually abused her, defendant responded, inter alia, that “I was misguided in thinking that it was something you wanted,” and that “I know it was wrong, and I was trying to show you love in a way that you shouldn’t have been shown.”
We reject defendant’s contention that he was denied effective assistance of counsel inasmuch as defense counsel’s conduct did not constitute “ ‘egregious and prejudicial’ error such that defendant did not receive a fair trial” (People v Benevento, 91 NY2d 708, 713 [1998]). Defendant contends that he was denied effective assistance of counsel because defense counsel arguably opened the door to allow the People to present evidence that the testimony of one of the victims had not been tailored
Defendant further contends that defense counsel was ineffective for advising him to abscond on the ground that he would not receive a fair trial. The facts upon which that contention is based are outside of the record on appeal, and the contention “must therefore he raised by way of a motion pursuant to CPL article 440 or an application seeking other [postconviction] relief” (People v Washington, 122 AD3d 1406, 1406 [2014]; see People v Ocasio, 81 AD3d 1469, 1470 [2011], lv denied 16 NY3d 898 [2011], cert denied 565 US —, 132 S Ct 318 [2011]). We reject defendant’s further contention that defense counsel’s failure to file a motion to set aside the verdict constitutes ineffective assistance of counsel inasmuch as defendant failed to “establish that the motion, if made, would have been successful” (People v Peterson, 19 AD3d 1015, 1016 [2005], lv denied 6 NY3d 851 [2006]). We have reviewed the remaining instances of alleged ineffective assistance of counsel raised by defendant and conclude that he received meaningful representation (see generally People v Baldi, 54 NY2d 137, 147 [1981]).
We reject the contention raised in defendant’s pro se
Contrary to defendant’s further contention in his pro se supplemental brief, count one of the indictment for course of sexual conduct against a child (Penal Law § 130.75 [1] [a]) is not time-barred by the statute of limitations set forth in CPL 30.10 (3) (f). The charges in the indictment occurred between August 1996 and 1998, not 1994 as alleged by defendant. The trial testimony of the victims established that the crimes occurred during the period set forth in the indictment, and there is no evidence that the victims lied with respect thereto.
Defendant further contends in his pro se supplemental brief that he was denied a fair trial with an impartial jury. During the trial, the court observed that “there were just some jurors perhaps out in the rotunda” in the vicinity of lawyers who may have been talking to a camera operator working for the press. The court responded by issuing a “gag order,” stating “no more contact between lawyers and the press.” Defendant’s contention that the court should have conducted a voir dire in response to its observations is not properly raised on this appeal inasmuch as that contention raises matters outside the record concerning what a voir dire would have revealed (see generally People v Piermont, 180 AD2d 830, 830 [1992], lv denied 79 NY2d 1006 [1992]; People v Robinson, 159 AD2d 598, 598 [1990]). The issue is thus outside the record and “must therefore be raised by way of a motion pursuant to CPL article 440 or an application seeking other [postconviction] relief” (Washington, 122 AD3d at 1406).
Defendant also contends in his pro se supplemental brief that he was denied a fair trial because one of the jurors revealed that she often stayed overnight in Genesee County, but that she still slept at her legal address in Niagara County several nights per week. We conclude that such objection to the juror was waived inasmuch as defendant did not move to
Finally, the sentence is not unduly harsh or severe. Present — Smith, J.P., Peradotto, Sconiers, Valentino and DeJoseph, JJ.