Opinion
06-16-2017
The PEOPLE of the State of New York, Respondent, v. Nelson CASTILLO, Defendant–Appellant.
Timothy P. Donaher, Public Defender, Rochester, The Law Office of Guy A. Talia (Guy A. Talia of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Leah Mervine of Counsel), for Respondent.
Timothy P. Donaher, Public Defender, Rochester, The Law Office of Guy A. Talia (Guy A. Talia of Counsel), for Defendant–Appellant.
Sandra Doorley, District Attorney, Rochester (Leah Mervine of Counsel), for Respondent.
PRESENT: CARNI, J.P., LINDLEY, DeJOSEPH, CURRAN, AND TROUTMAN, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him following a jury trial of five counts of criminal contempt in the first degree ( Penal Law § 215.51[c] ). Defendant failed to preserve for our review his contention that the evidence is legally insufficient to support his conviction inasmuch as the ground advanced for defendant's trial motion for an order of dismissal was different than that now advanced on appeal (see People v. Kelly, 79 A.D.3d 1642, 1642, 913 N.Y.S.2d 846, lv. denied 16 N.Y.3d 832, 921 N.Y.S.2d 196, 946 N.E.2d 184 ; see also People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 ; People v. Nuffer, 70 A.D.3d 1299, 1299, 894 N.Y.S.2d 698 ). In any event, we reject defendant's contention. Viewing the evidence in the light most favorable to the People (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we conclude that the evidence is legally sufficient to support the conviction (see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).
Defendant further contends that a special information setting forth a prior conviction of criminal contempt in the second degree could not serve to establish a predicate conviction because it references an incorrect Penal Law provision for that crime. We note, however, that defendant never objected to the irregularity, and thus his contention is not preserved for our review (see CPL 470.05[2] ). In any event, we further note that the special information refers to the correct name of the crime, thereby establishing that the error is "akin to a mere misnomer in the designation of the crime charged, which does not create a jurisdictional defect" ( People v. Bishop, 115 A.D.3d 1243, 1244, 982 N.Y.S.2d 644, lv. denied 23 N.Y.3d 1018, 992 N.Y.S.2d 800, 16 N.E.3d 1280, reconsideration denied 24 N.Y.3d 1082, 1 N.Y.S.3d 8, 25 N.E.3d 345 [internal quotation marks omitted] ). Moreover, defendant admitted in Supreme Court that "[he was] in fact the same person who was previously convicted of criminal contempt in the second degree on April 7, 2010 in Greece," which eliminated any possible confusion.
Defendant's contention that the court erred in allowing proof of the predicate conviction in violation of CPL 200.60 is unpreserved for our review (see People v. Anderson, 114 A.D.3d 1083, 1086, 981 N.Y.S.2d 200, lv. denied 22 N.Y.3d 1196, 986 N.Y.S.2d 417, 9 N.E.3d 912 ), and we decline to exercise our power to review it as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ). We further conclude that any error in the court's Molineux and Sandoval rulings is harmless inasmuch as the evidence of defendant's guilt is overwhelming, and there is no significant probability that defendant would have been acquitted but for the error (see People v. Arafet, 13 N.Y.3d 460, 467, 892 N.Y.S.2d 812, 920 N.E.2d 919 ; People v. Grant, 7 N.Y.3d 421, 424–425, 823 N.Y.S.2d 757, 857 N.E.2d 52 ).
Defendant failed to preserve for our review all but one of his present claims with respect to alleged instances of prosecutorial misconduct (see CPL 470.05[2] ) and, in any event, we conclude that "[a]ny improprieties were not so pervasive or egregious as to deprive defendant of a fair trial" ( people v. resto, 147 A.d.3d 1331, 1333, 47 n.y.s.3d 522, lv. denied 29 N.Y.3d 1000, 57 N.Y.S.3d 722, 80 N.E.3d 415 [Apr. 28, 2017] [internal quotation marks omitted] ).
Defendant's contention that the order of protection issued at sentencing lacked a sufficient rationale and was not issued in accordance with procedures mandated under the Criminal Procedure Law is unpreserved for our review. Defendant "failed to challenge the issuance of the order of protection at sentencing or to seek vacatur of the final order of protection" ( People v. Lewis, 125 A.D.3d 1462, 1462, 999 N.Y.S.2d 915, lv. denied 25 N.Y.3d 1074, 12 N.Y.S.3d 625, 34 N.E.3d 376 ). We decline to reach that contention as a matter of discretion in the interest of justice (see CPL 470.15[3][c] ).
Although we have broad power to modify a sentence that is unduly harsh and severe, even if the sentence falls within the permissible statutory range (see CPL 470.15[6][b] ; see also People v. Smart, 100 A.D.3d 1473, 1475, 954 N.Y.S.2d 322, affd. 23 N.Y.3d 213, 989 N.Y.S.2d 631, 12 N.E.3d 1061 ; People v. Delgado, 80 N.Y.2d 780, 783, 587 N.Y.S.2d 271, 599 N.E.2d 675 ; People v. Woods, 142 A.D.3d 1356, 1358–1359, 38 N.Y.S.3d 337 ), we see no reason to do so in this case.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.