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finding that the trial court did not err by merely "remind[ing] the jury of the 'cautionary instruction' it had previously given" during the jury charge, and concluding that the jury had been "sufficiently cautioned . . . concerning the limited purpose for which the [evidence] had been admitted"
Summary of this case from Forino v. LeeOpinion
2013-03-15
The PEOPLE of the State of New York, Respondent, v. Felix MENDEZ, Defendant–Appellant.
Frank H. Hiscock Legal Aid Society, Syracuse (Piotr Banasiak of Counsel), for Defendant–Appellant. William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of Counsel), for Respondent.
Frank H. Hiscock Legal Aid Society, Syracuse (Piotr Banasiak of Counsel), for Defendant–Appellant.William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, WHALEN, AND MARTOCHE, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon a jury verdict of course of sexual conduct against a child in the first degree (Penal Law § 130.75[1][b] ) and endangering the welfare of a child (§ 260.10 [1] ). We reject defendant's contention that County Court committed reversible error in admitting in evidence a recorded telephone conversation in which defendant allegedly referred to his commission of prior bad acts. The record establishes that the court gave the curative instruction requested by defendant. Defendant did not object further or seek a mistrial, and thus the curative instruction “must be deemed to have corrected the error to the defendant's satisfaction” ( People v. Heide, 84 N.Y.2d 943, 944, 620 N.Y.S.2d 814, 644 N.E.2d 1370). In any event, we conclude that the curative instruction sufficiently alleviated any prejudicial effect of permitting the jury to hear the unredacted recording ( see People v. Borden, 90 A.D.3d 1652, 1652, 935 N.Y.S.2d 810,lv. denied18 N.Y.3d 992, 945 N.Y.S.2d 646, 968 N.E.2d 1002). We reject defendant's further contention that the court erred in failing to repeat the curative instruction verbatim in its jury charge. During its charge, the court reminded the jury of the “ cautionary instruction” it had previously given, and we conclude under the circumstances of this case that the court thereby sufficiently cautioned the jury concerning the limited purpose for which the recorded conversation had been admitted ( see People v. Williams, 50 N.Y.2d 996, 998, 431 N.Y.S.2d 477, 409 N.E.2d 949). Defendant failed to preserve for our review his contention that the court erred in admitting portions of the recorded conversation that allegedly referenced his invocation of his right to counsel and the right to remain silent ( seeCPL 470.05[2] ). In any event, that contention has no merit because the recording does not contain any reference to the invocation of those rights during custodial interrogation ( cf. People v. De George, 73 N.Y.2d 614, 618, 543 N.Y.S.2d 11, 541 N.E.2d 11). We therefore reject defendant's further contention that defense counsel was ineffective in failing to object to the admission of those portions of the recording in evidence ( see People v. Watson, 90 A.D.3d 1666, 1667, 935 N.Y.S.2d 823,lv. denied19 N.Y.3d 868, 947 N.Y.S.2d 417, 970 N.E.2d 440).
Defendant failed to preserve for our review his contention that his conviction of section 130.75(1)(b) violates the ex post facto prohibition in article I (§ 10[1] ) of the U.S. Constitution ( see People v. Ramos, 13 N.Y.3d 881, 882, 893 N.Y.S.2d 831, 921 N.E.2d 598,rearg. denied14 N.Y.3d 794, 899 N.Y.S.2d 125, 925 N.E.2d 929;People v. Carey, 92 A.D.3d 1224, 1224, 937 N.Y.S.2d 809,lv. denied18 N.Y.3d 992, 945 N.Y.S.2d 647, 968 N.E.2d 1003). In any event, we conclude that defendant's contention has no merit ( see generally People v. Walter, 5 A.D.3d 1107, 1108–1109, 773 N.Y.S.2d 677,lv. denied3 N.Y.3d 650, 782 N.Y.S.2d 421, 816 N.E.2d 211,reconsideration denied3 N.Y.3d 712, 785 N.Y.S.2d 40, 818 N.E.2d 682), and thus that he also was not denied effective assistance of counsel based on defense counsel's failure to advance that contention ( see Watson, 90 A.D.3d at 1667, 935 N.Y.S.2d 823). Defendant also failed to preserve for our review his contention that he was unconstitutionally punished for exercising his right to a trial ( see People v. Motzer, 96 A.D.3d 1635, 1636, 946 N.Y.S.2d 795,lv. denied19 N.Y.3d 1104, 955 N.Y.S.2d 559, 979 N.E.2d 820). In any event, that contention lacks merit because there is no evidence in the record that the court was motivated by “vindictiveness” in sentencing defendant following the trial ( People v. Patterson, 106 A.D.2d 520, 521, 483 N.Y.S.2d 55;see Motzer, 96 A.D.3d at 1636, 946 N.Y.S.2d 795). Finally, the sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.