
    The People of the State of New York, Respondent, v Matthew Gardner, Appellant.
    [872 NYS2d 311]
   Appeal from a judgment of the Supreme' Court, Onondaga County (John J. Brunotti, A.J.), rendered March 10, 2006. The judgment convicted defendant, upon a jury verdict, of criminal sexual act in the second degree, sexual abuse in the third degree 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, inter alia, criminal sexual act in the second degree (Penal Law § 130.45 [1]). We reject the contention of defendant that he was denied effective assistance of counsel based on defense counsel’s failure to cross-examine the victim with respect to a prior inconsistent statement she made (see People v Rodriguez, 48 AD3d 312 [2008], lv denied 10 NY3d 939 [2008]), and we conclude on the record before us that defendant received effective assistance of counsel (see generally People v Baldi, 54 NY2d 137, 147 [1981]). To the extent that defendant’s contention is based on matters outside the record on appeal, it must be raised by way of a motion pursuant to CPL article 440 (see People v Keith, 23 AD3d 1133, 1134-1135 [2005], lv denied 6 NY3d 815 [2006]). Present—Martoche, J.P., Fahey, Green, Pine and Gorski, JJ.  