Opinion
1017 KA 13-02135.
10-02-2015
The PEOPLE of the State of New York, Respondent, v. Samuel MUSCARELLA, Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Deborah K. Jessey of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (Nicholas T. Texido of Counsel), for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Deborah K. Jessey of Counsel), for Defendant–Appellant.
Frank A. Sedita, III, District Attorney, Buffalo (Nicholas T. Texido of Counsel), for Respondent.
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, WHALEN, and DeJOSEPH, JJ.
Opinion
MEMORANDUM:Defendant appeals from a judgment convicting him, upon a jury verdict, of burglary in the first degree (Penal Law § 140.30[3] ) and two counts of predatory sexual assault (§ 130.95[1][b] ) and, upon a guilty plea, of six counts of aggravated harassment in the second degree (§ 240.30 former [2] ). By making only a general motion for a trial order of dismissal, defendant failed to preserve for our review his contention that the evidence is legally insufficient to support the conviction (see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 ). Furthermore, viewing the evidence in light of the elements of the crimes of burglary in the first degree and predatory sexual assault as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we reject defendant's contention that the verdict is contrary to the weight of the evidence (see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).
Defendant failed to preserve for our review his contention that County Court erred in failing to specify the dangerous instrument when it charged the jury with respect to the predatory sexual assault charge in count two of the indictment (see People v. Corney, 303 A.D.2d 1006, 1007, 756 N.Y.S.2d 806, lv. denied 1 N.Y.3d 570, 775 N.Y.S.2d 787, 807 N.E.2d 900 ; People v. Molling, 238 A.D.2d 915, 915, 661 N.Y.S.2d 129 ). In any event, we note that the instruction given by the court was consistent with the pattern Criminal Jury Instructions for predatory sexual assault, which does not require the court to specify the dangerous instrument (see CJI2d [N.Y.] Penal Law § 130.95 [1 ][b] ).
Contrary to defendant's contention, Penal Law § 240.30 (former [2] ) is constitutional inasmuch as “its proscription is limited to conduct” (People v. Shack, 86 N.Y.2d 529, 535, 634 N.Y.S.2d 660, 658 N.E.2d 706 ). The concerns of the Court of Appeals with respect to any proscription of speech in section 240.30(1)(a) are therefore not relevant to this case (see generally People v. Golb, 23 N.Y.3d 455, 467, 991 N.Y.S.2d 792, 15 N.E.3d 805 ).
Defendant further contends that he did not receive a fair trial because the court improperly denied his request for a missing witness charge and improperly struck a portion of a police officer's testimony on hearsay grounds. That contention is without merit. “ ‘[D]efendant's request for ... a [missing witness] charge, made after the close of proof, was untimely’ ” and, in any event, “defendant failed to meet his burden of establishing his entitlement to such a charge inasmuch as the uncalled witness's testimony would have been cumulative” (People v. Arroyo, 111 A.D.3d 1299, 1300, 974 N.Y.S.2d 217, lv. denied 23 N.Y.3d 960, 988 N.Y.S.2d 567, 11 N.E.3d 717 ). With respect to the police officer's testimony, even assuming, arguendo, that the court improperly entertained the People's late hearsay objection, we conclude that any error is harmless inasmuch as the court never instructed the jury that the testimony was stricken. The evidence of guilt is overwhelming, and there is “no significant probability that defendant would have been acquitted but for the error” (People v. Brooks, 26 A.D.3d 867, 867, 810 N.Y.S.2d 615, lv. denied 6 N.Y.3d 892, 817 N.Y.S.2d 627, 850 N.E.2d 674 ).
We have examined defendant's remaining contentions and conclude that none requires modification or reversal of the judgment.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.