Opinion
2004-1589 S CR.
Decided October 27, 2006.
Appeal from a judgment of the District Court of Suffolk County, First District (Lawrence Donohue, J.), rendered October 29, 2004, as amended November 1, 2004. The judgment convicted defendant, upon a jury verdict, of aggravated harassment in the second degree.
Judgment of conviction affirmed.
PRESENT: RUDOLPH, P.J., McCABE and TANENBAUM, JJ.
Defendant's constitutional challenges to Penal Law § 240.30 (1) are not preserved for appellate review (CPL 170.30 [a]; 170.35 [1] [c]; People v Davidson, 98 NY2d 738, 739; People v Iannelli, 69 NY2d 684, 685; People v Peck, 31 AD3d 1216; People v Peak Carting, Inc., 11 Misc 3d 4, 6 [App Term, 9th 10th Jud Dists 2005]). In any event, the statute has repeatedly survived constitutional review ( People v Shack, 86 NY2d 529; People v Dupont, 107 AD2d 247; People v Goldstein, 196 Misc 2d 741 [App Term, 2d 11th Jud Dists 2003]; People v Smith, 89 Misc 2d 790 [App Term, 9th 10th Jud Dists 1977]; cf. People v Mangano, 100 NY2d 569).
While defendant timely objected to the People's disclosure, on the day of trial, of the audiotape of defendant's communications to the complainant's home and cellular telephones, the court, in a proper exercise of its discretion, declined to preclude the evidence. Such a drastic remedy is merited only on a demonstration of undue prejudice or bad faith ( e.g. People v Jenkins, 284 AD2d 550, 551). Defense counsel reviewed the tape prior to trial and did not question the accuracy of the transcript provided therewith. Defendant never sought the continuance available pursuant to CPL 240.70 (1) to review the material ( People v Myers, 226 AD2d 557, 558; People v Cunningham, 189 AD2d 821, 822). Moreover, the record does not disclose that defense counsel's ability to make effective use of the transcript in his examination of the witnesses was impaired, or that his capacity to orchestrate the defense was otherwise diminished ( People v Cortijo, 70 NY2d 868, 870; People v Thomas, 12 AD3d 383, 384; People v Maddery, 282 AD2d 761).
Defendant's claims that the accusatory instrument is facially duplicitous and that, in any event, the jury charge introduced the risk of duplicity by invoking complainant's wife as an additional potential victim, are not preserved for appellate review ( People v Gonzalez, 187 AD2d 607; People v Webb, 177 AD2d 524; People v Stamen, 163 AD2d 499).
Rudolph, P.J., McCabe and Tanenbaum, JJ., concur.