Opinion
KA 02-02714.
December 31, 2003.
Appeal from a judgment of Erie County Court (Pietruszka, J.), entered November 20, 2002, convicting defendant after a jury trial of criminal contempt in the first degree (two counts) and aggravated harassment in the second degree (two counts).
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (TIMOTHY P. MURPHY OF COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (STEVEN MEYER OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Before: PRESENT: PINE, J.P., WISNER, HURLBUTT, KEHOE, AND HAYES, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of two counts each of criminal contempt in the first degree (Penal Law § 215.51 [b] [iii]) and aggravated harassment in the second degree (§ 240.30 [1]) arising from two threatening telephone calls that he made to his wife in violation of an order of protection. Defendant's wife did not answer the first telephone call, but her answering machine recorded defendant's message.
Contrary to the contentions of defendant, he was not deprived of a fair trial as a result of County Court's combined Sandoval and Molineux ruling. With respect to the Sandoval application, the court properly "weighed appropriate concerns" in precluding the People from cross-examining defendant concerning a prior conviction of driving while impaired and limiting the scope of permissible cross-examination to two prior incidents of domestic violence ( People v. Hayes, 97 N.Y.2d 203, 208). With respect to the Molineux application, the court properly allowed the People to inquire fully into the circumstances underlying the conviction that resulted in the issuance of the order of protection ( see People v. Howe, 292 A.D.2d 542, lv denied 98 N.Y.2d 711; People v. Wright, 288 A.D.2d 409, lv denied 97 N.Y.2d 763) . Defendant failed to preserve for our review his contentions that the combined ruling improperly blurred the distinction between Sandoval and Molineux evidence and that the court's Molineux instruction was inadequate ( see CPL 470.05). We decline to exercise our power to review those contentions as a matter of discretion in the interest of justice (see 470.15 [6] [a]).
Contrary to the further contention of defendant, the court properly denied his motion seeking dismissal of the indictment on the ground that the People failed to preserve evidence of the first telephone call before defendant's wife erased the recorded message. The People are subject to sanctions for failing to preserve discoverable evidence only if the evidence is lost or destroyed while in their possession ( see People v. James, 93 N.Y.2d 620, 644).
Finally, we conclude that defendant received meaningful representation ( see People v. Benevento, 91 N.Y.2d 708, 712-715; People v. Baldi, 54 N.Y.2d 137, 147), and we reject defendant's contention that the verdict is against the weight of the evidence ( see People v. Bleakley, 69 N.Y.2d 490, 495).