Opinion
107348
11-30-2017
The PEOPLE of the State of New York, Respondent, v. Noel T. RUSSELL, Appellant.
Sandra M. Colatosti, Albany, for appellant. James R. Farrell, District Attorney, Monticello (Richard K. Caister of counsel), for respondent.
Sandra M. Colatosti, Albany, for appellant.
James R. Farrell, District Attorney, Monticello (Richard K. Caister of counsel), for respondent.
Before: Egan Jr., J.P., Devine, Clark, Mulvey and Rumsey, JJ.
MEMORANDUM AND ORDER
Egan Jr., J.P.
Appeal from a judgment of the County Court of Sullivan County (LaBuda, J.), rendered September 17, 2014, upon a verdict convicting defendant of the crimes of predatory sexual assault (two counts), predatory sexual assault against a child (two counts) and incest in the first degree.
When this case was previously before this Court, we dismissed count 7 of the indictment as duplicitous, reversed defendant's convictions on counts 2, 3, 4, 5 and 6 of the indictment and remitted the matter to County Court for a new trial ( 116 A.D.3d 1090, 1093, 983 N.Y.S.2d 105 [2014] ). Following a retrial, defendant was convicted of two counts of predatory sexual assault, two counts of predatory sexual assault against a child and incest in the first degree. Defendant was thereafter sentenced to an aggregate prison term of 50 years to life and 25 years of postrelease supervision. Defendant now appeals.
Defendant's initial trial resulted in a deadlocked jury. During that trial, count 1 of the indictment was dismissed.
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We affirm. Defendant's initial contention that he was denied his right to a fair trial as a result of the inadequacy of the admonitions that County Court provided to the jury throughout the trial was not adequately preserved for our review as he failed to render a timely objection before County Court (see CPL 270.40, 310.10[2] ; 470.05[2]; People v. Bonaparte, 78 N.Y.2d 26, 31, 571 N.Y.S.2d 421, 574 N.E.2d 1027 [1991] ; People v. Irby, 140 A.D.3d 1319, 1323, 33 N.Y.S.3d 530 [2016], lv denied 28 N.Y.3d 931, 40 N.Y.S.3d 359, 63 N.E.3d 79 [2016] ; People v. Dashnaw, 37 A.D.3d 860, 862, 828 N.Y.S.2d 697 [2007], lv denied 8 N.Y.3d 945, 836 N.Y.S.2d 555, 868 N.E.2d 238 [2007] ). In any event, although County Court's admonishments to the jury were less than complete (see CPL 270.40 ), considered in the aggregate, we would find, if the issue were properly before us, that County Court's admonishments "adequately conveyed to the jury its function, duties and conduct" ( People v. Williams, 46 A.D.3d 585, 585–586, 846 N.Y.S.2d 620 [2007] [internal quotation marks and citation omitted], lv denied 10 N.Y.3d 772, 854 N.Y.S.2d 334, 883 N.E.2d 1269 [2008] ; see People v. LaDuke, 140 A.D.3d 1467, 1470, 34 N.Y.S.3d 688 [2016] ; People v. Irby, 140 A.D.3d at 1323, 33 N.Y.S.3d 530 ).
Defendant next contends that County Court erred in denying his request to redact certain hearsay information from the presentence investigation report (hereinafter PSI), namely, a statement by his mother alleging that he had engaged in certain additional uncharged instances of sexual abuse. Notably, defendant does not challenge the judgment of conviction on this basis, as he acknowledges that County Court did not rely on this statement in imposing sentence; rather, he argues that, to the extent that this statement has the potential to result in future prejudice should he subsequently be considered for parole and/or to the extent that it may negatively effect his risk level classification, the statement should have been redacted.
"The purpose of a presentence investigation is to provide the court with the best available information upon which to render an individualized sentence" ( People v. Thomas, 2 A.D.3d 982, 984, 768 N.Y.S.2d 519 [2003] [internal quotation marks and citation omitted], lv denied 1 N.Y.3d 602, 776 N.Y.S.2d 233, 808 N.E.2d 369 [2004] ), which includes information that may otherwise be inadmissible at trial (see People v. Paragallo, 82 A.D.3d 1508, 1509, 923 N.Y.S.2d 229 [2011] ). Indeed, where a PSI contains "clearly erroneous information," such information should be redacted based upon the "unjustifiable risk of future adverse effects to [the] defendant" ( People v. Freeman, 67 A.D.3d 1202, 1202, 1203, 889 N.Y.S.2d 119 [2009] ; see People v. Taylor, 118 A.D.3d 1044, 1048, 986 N.Y.S.2d 711 [2014], lv denied 23 N.Y.3d 1043, 993 N.Y.S.2d 257, 17 N.E.3d 512 [2014] ). However, a PSI "may include any relevant information on the history of [the] defendant ... [,] even offenses for which he [or she] has not been convicted" ( People v. Whalen, 99 A.D.2d 883, 884, 472 N.Y.S.2d 784 [1984] ; accord People v. Paragallo, 82 A.D.3d at 1510, 923 N.Y.S.2d 229 ; see People v. Jones, 77 A.D.3d 1178, 1179, 909 N.Y.S.2d 407 [2010], lv denied 16 N.Y.3d 832, 921 N.Y.S.2d 196, 946 N.E.2d 184 [2011] ). Here, inasmuch as defendant was provided with an opportunity to challenge the hearsay statement set forth in the PSI and, given the fact that County Court elected not to give any weight to the statement in question, under the circumstances, we find no basis upon which to redact the PSI (see People v. Thomas, 2 A.D.3d at 984, 768 N.Y.S.2d 519 ).
We likewise find without merit defendant's contention that the sentence imposed upon his retrial was harsh and excessive or the product of vindictiveness. The fact that the sentence imposed after trial has greater than the one offered during plea negotiations is not, standing alone, proof that defendant was penalized for exercising his right to trial (see People v. Martinez, 144 A.D.3d 1326, 1327, 40 N.Y.S.3d 678 [2016], lv denied 28 N.Y.3d 1186, 52 N.Y.S.3d 712, 75 N.E.3d 104 [2017] ). Moreover, any presumption of vindictiveness that applied based upon defendant having received a harsher sentence upon retrial (see People v. Martinez, 26 N.Y.3d 196, 199, 42 N.E.3d 693 [2015] ) was overcome by County Court's statements at sentencing (see People v. Casanova, 152 A.D.3d 875, 879 [2017], lvs denied 30 N.Y.3d 948, 67 N.Y.S.3d 131, 89 N.E.3d 521 [Sept. 13, 2017] ). County Court indicated that, in imposing sentence, it gave no weight to defendant's previous trials. Rather, the court's sentence was justified based upon the heinous nature of defendant's crimes, the relationship between defendant and the victim, the victim's particular vulnerability and the fact that, when these crimes were committed, defendant remained on felony probation for a previous conviction for rape in the third degree of an underage female. Under these circumstances, and given the lack of any remorse on the part of defendant, we find no abuse of discretion or extraordinary circumstances that would warrant a reduction of the sentence in the interest of justice (see People v. Hughes, 93 A.D.3d 889, 891, 940 N.Y.S.2d 183 [2012], lv denied 19 N.Y.3d 961, 950 N.Y.S.2d 113, 973 N.E.2d 211 [2012] ; People v. Alford, 65 A.D.3d 1392, 1394–1395, 884 N.Y.S.2d 798 [2009], mod on other grounds 14 N.Y.3d 846, 901 N.Y.S.2d 132, 927 N.E.2d 552 [2010] ).
ORDERED that the judgment is affirmed.
Devine, Clark, Mulvey and Rumsey, JJ., concur.