Opinion
1260 KA 17–00960
12-21-2018
The PEOPLE of the State of New York, Respondent, v. Alfonso C. CUTAIA, Defendant–Appellant.
DAVID J. FARRUGIA, PUBLIC DEFENDER, LOCKPORT (JOSEPH G. FRAZIER OF COUNSEL), FOR DEFENDANT–APPELLANT. CAROLINE A. WOJTASZEK, DISTRICT ATTORNEY, LOCKPORT (LAURA T. JORDAN OF COUNSEL), FOR RESPONDENT.
DAVID J. FARRUGIA, PUBLIC DEFENDER, LOCKPORT (JOSEPH G. FRAZIER OF COUNSEL), FOR DEFENDANT–APPELLANT.
CAROLINE A. WOJTASZEK, DISTRICT ATTORNEY, LOCKPORT (LAURA T. JORDAN OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., PERADOTTO, NEMOYER, CURRAN, AND TROUTMAN, JJ.
MEMORANDUM AND ORDERIt 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 predatory sexual assault against a child ( Penal Law § 130.96 ). Defendant was acquitted of another count of predatory sexual assault against a child involving a different complainant. We affirm.
Defendant challenges County Court's admission of certain Molineux evidence. That evidence, however, pertained only to the count of which defendant was acquitted, and the court gave extensive limiting instructions forbidding the jury from considering the Molineux evidence in connection with the count of which he was convicted. As such, defendant was not prejudiced by the Molineux evidence at issue, and we therefore reject his assertion that he was denied a fair trial as a result of its admission (see People v. Reynoso–Fabian, 134 A.D.3d 1141, 1146–1147, 20 N.Y.S.3d 479 [3d Dept. 2015] ; see generally People v. Young, 255 A.D.2d 907, 907, 683 N.Y.S.2d 678 [4th Dept. 1998], affd 94 N.Y.2d 171, 701 N.Y.S.2d 309, 723 N.E.2d 58 [1999] ). Defendant's related claim that the admission of the Molineux evidence chilled his right to testify about the charge of which he was convicted necessarily assumes that the jury would have disregarded the court's clear instructions forbidding any consideration of the Molineux evidence in connection with that charge, and the law does not permit such an assumption (see generally People v. Baker, 14 N.Y.3d 266, 274, 899 N.Y.S.2d 733, 926 N.E.2d 240 [2010] ; People v. Alexander, 160 A.D.3d 1370, 1371, 76 N.Y.S.3d 675 [4th Dept. 2018], lv denied 32 N.Y.3d 1001, 86 N.Y.S.3d 760, 111 N.E.3d 1116 [2018] ).
Contrary to defendant's further contention, the court properly denied his motion to sever the two counts for trial (see People v. Rios, 107 A.D.3d 1379, 1380–1381, 966 N.Y.S.2d 626 [4th Dept. 2013], lv denied 22 N.Y.3d 1158, 984 N.Y.S.2d 642, 7 N.E.3d 1130 [2014] ; see also People v. Molyneaux, 49 A.D.3d 1220, 1221, 853 N.Y.S.2d 774 [4th Dept. 2008], lv denied 10 N.Y.3d 937, 862 N.Y.S.2d 344, 892 N.E.2d 410 [2008] ).
We reject defendant's contention that he was deprived of due process by four instances of alleged prosecutorial misconduct on summation. As defendant correctly concedes, the court effectively sustained his objections to all four challenged comments. Because defendant did not seek any further relief in connection with three of the four challenged comments, any prejudice from those three comments was presumptively corrected to his satisfaction (see People v. Heide, 84 N.Y.2d 943, 944, 620 N.Y.S.2d 814, 644 N.E.2d 1370 [1994] ; People v. Carson, 122 A.D.3d 1391, 1393, 997 N.Y.S.2d 881 [4th Dept. 2014], lv denied 25 N.Y.3d 1161, 15 N.Y.S.3d 293, 36 N.E.3d 96 [2015] ). Defendant's mistrial motion with respect to the remaining challenged comment was properly denied because the prosecutor did not actually comment on defendant's failure to testify (see People v. Elliott, 288 A.D.2d 907, 907, 732 N.Y.S.2d 392 [4th Dept. 2001], lv denied 97 N.Y.2d 704, 739 N.Y.S.2d 104, 765 N.E.2d 307 [2002] ; see generally People v. Thomas, 96 A.D.3d 1670, 1673, 949 N.Y.S.2d 545 [4th Dept. 2012], lv denied 19 N.Y.3d 1002, 951 N.Y.S.2d 478, 975 N.E.2d 924 [2012] ).
The sentence is not unduly harsh or severe. We are nevertheless compelled to emphasize once again that, "[c]ontrary to the People's contention, and as we have previously noted, it is well settled that this Court's sentence-review power may be exercised, if the interest of justice warrants, without deference to the sentencing court ..., and that we may substitute our own discretion for that of a trial court which has not abused its discretion in the imposition of a sentence" ( People v. White, 153 A.D.3d 1565, 1568, 62 N.Y.S.3d 236 [4th Dept. 2017], lv denied 30 N.Y.3d 1065, 71 N.Y.S.3d 15, 94 N.E.3d 497 [2017] [internal quotation marks omitted] ).Finally, we note that the "certificate of disposition" contains multiple errors that must be corrected (see generally People v. Saxton, 32 A.D.3d 1286, 1286, 821 N.Y.S.2d 353 [4th Dept. 2006] ). First, the certificate lists an incorrect date for the underlying offense, and it must be amended to reflect the correct date range specified in count one of the indictment. Second, the certificate incorrectly states that count one of the indictment was "reduced" at some point during the proceedings, and this notation must be stricken. Third, the certificate does not clearly specify the jury's verdict on each count, and it must be amended to clearly indicate that defendant was convicted of count one and acquitted of count two. Fourth, the certificate incorrectly states that the court assessed only a $325 "surcharge" at sentencing; rather, the court assessed a $300 mandatory surcharge, a $50 DNA databank fee, a $25 crime victim assistance fee, and a $50 sex offender registration fee, and the certificate must be amended to correctly delineate the various fees and surcharges assessed.