Opinion
1015 KA 16–01561
09-28-2018
The PEOPLE of the State of New York, Respondent, v. David L. SERRANO, Defendant–appellant.
KATHLEEN E. CASEY, BARKER, FOR DEFENDANT–APPELLANT. CAROLINE A. WOJTASZEK, DISTRICT ATTORNEY, LOCKPORT (THOMAS H. BRANDT OF COUNSEL), FOR RESPONDENT.
KATHLEEN E. CASEY, BARKER, FOR DEFENDANT–APPELLANT.
CAROLINE A. WOJTASZEK, DISTRICT ATTORNEY, LOCKPORT (THOMAS H. BRANDT OF COUNSEL), FOR RESPONDENT.
PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of criminal contempt in the first degree ( Penal Law § 215.51[c] ), defendant contends that Supreme Court erred in admitting evidence concerning defendant's prior violations of the order of protection that he allegedly violated in the underlying crime. We reject that contention. "That testimony was relevant to establish defendant's motive and intent in committing the crime[ ] charged ... and to establish that defendant's violation of the order of protection was neither innocent nor inadvertent" ( People v. Pytlak, 99 A.D.3d 1242, 1242–1243, 951 N.Y.S.2d 812 [4th Dept. 2012], lv denied 20 N.Y.3d 988, 958 N.Y.S.2d 703, 982 N.E.2d 623 [2012] ; see People v. Zollo, 47 A.D.3d 958, 958, 849 N.Y.S.2d 665 [2d Dept. 2008] ). Inasmuch as the defense sought to establish that defendant's presence in the trees behind the complainant's residence had an innocent explanation, the evidence was relevant to refute that defense, and "the court properly determined that the probative value of that testimony outweighed its potential for prejudice" ( Pytlak, 99 A.D.3d at 1243, 951 N.Y.S.2d 812 ; see People v. Rogers, 103 A.D.3d 1150, 1152–1153, 958 N.Y.S.2d 835 [4th Dept. 2013], lv denied 21 N.Y.3d 946, 968 N.Y.S.2d 8, 990 N.E.2d 142 [2013] ; Zollo, 47 A.D.3d at 958, 849 N.Y.S.2d 665 ).
Defendant failed to preserve for our review his contention that the court erred in failing to give limiting instructions with respect to the above Molineux evidence (see People v. Burrell, 120 A.D.3d 911, 912, 990 N.Y.S.2d 427 [4th Dept. 2014] ; People v. Williams, 107 A.D.3d 1516, 1516, 966 N.Y.S.2d 784 [4th Dept. 2013], lv denied 21 N.Y.3d 1047, 972 N.Y.S.2d 544, 995 N.E.2d 860 [2013] ), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).
Although defendant contends that the court erred in permitting the People to introduce evidence of an encounter between defendant and the complainant's boyfriend outside of the complainant's residence earlier on the evening of defendant's arrest, we conclude that defendant waived that contention when he stipulated prior to trial that such evidence was admissible (see e.g. People v. Howie, 149 A.D.3d 1497, 1498, 53 N.Y.S.3d 748 [4th Dept. 2017], lv denied 29 N.Y.3d 1128, 64 N.Y.S.3d 678, 86 N.E.3d 570 [2017] ; People v. Hutchings, 142 A.D.3d 1292, 1294, 38 N.Y.S.3d 863 [4th Dept. 2016], lv denied 28 N.Y.3d 1124, 51 N.Y.S.3d 21, 73 N.E.3d 361 [2016] ; People v. Santos–Sosa, 233 A.D.2d 833, 833, 649 N.Y.S.2d 622 [4th Dept. 1996], lv denied 89 N.Y.2d 988, 656 N.Y.S.2d 747, 678 N.E.2d 1363 [1997] ). In any event, we conclude that the evidence was admissible inasmuch as it "completed the narrative of this particular criminal transaction" ( People v. Alfaro, 19 N.Y.3d 1075, 1076, 955 N.Y.S.2d 826, 979 N.E.2d 1152 [2012] ).
Finally, viewing the evidence, the law and the circumstances of this case in totality and as of the time of the representation, we conclude that defendant received meaningful representation (see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ).