Summary
finding unpreserved defendant's contention that "his conviction of [sexual conduct against a child in the first degree] violates the ex post factor prohibition," and declining to address that contention in the interest of justice
Summary of this case from Hughes v. SheahanOpinion
2012-02-10
The PEOPLE of the State of New York, Respondent, v. Carl CAREY, Defendant–Appellant.
Linda M. Campbell, Syracuse, for Defendant–Appellant. William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of Counsel), for Respondent.
Linda M. Campbell, Syracuse, for Defendant–Appellant. William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, AND MARTOCHE, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, course of sexual conduct against a child in the first degree (Penal Law § 130.75[1][b] ), arising from his sexual abuse of the victim beginning from the time she was 7 years old. Defendant failed to preserve for our review his contentions that his conviction of section 130.75(1)(b) violates the ex post facto prohibition in article I (§ 10 [cl 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. denied 14 N.Y.3d 794, 899 N.Y.S.2d 125, 925 N.E.2d 929; People v. Ruz, 70 N.Y.2d 942, 524 N.Y.S.2d 668, 519 N.E.2d 614; People v. Bove, 52 A.D.3d 1124, 861 N.Y.S.2d 164; People v. Whitfield, 50 A.D.3d 1580, 855 N.Y.S.2d 791, lv. denied 10 N.Y.3d 965, 863 N.Y.S.2d 149, 893 N.E.2d 455), and that the nearly six-year time frame set forth in that count of the indictment was excessive ( see People v. Soto, 44 N.Y.2d 683, 405 N.Y.S.2d 434, 376 N.E.2d 907; People v. Erle, 83 A.D.3d 1442, 1443, 919 N.Y.S.2d 742, lv. denied 17 N.Y.3d 794, 929 N.Y.S.2d 102, 952 N.E.2d 1097; People v. Adams, 59 A.D.3d 928, 872 N.Y.S.2d 616, lv. denied 12 N.Y.3d 813, 881 N.Y.S.2d 21, 908 N.E.2d 929). We decline to exercise our power to address those contentions as a matter of discretion in the interest of justice ( see CPL 470.15[6][a] ).
We reject defendant's further contention that Supreme Court erred in permitting the People to introduce evidence of a noncriminal sexual encounter that occurred between defendant and the victim after she turned 17 years old. The evidence was relevant to “explain the relationship between defendant and the victim ..., as well as to place the events in question in a believable context and explain the victim's [reason for] reporting defendant's conduct” ( People v. Haidara, 65 A.D.3d 974, 885 N.Y.S.2d 415, lv. denied 13 N.Y.3d 939, 895 N.Y.S.2d 329, 922 N.E.2d 918; see People v. Gilley, 4 A.D.3d 127, 127–128, 770 N.Y.S.2d 868, lv. denied 2 N.Y.3d 799, 781 N.Y.S.2d 299, 814 N.E.2d 471). We note in any event that, “[c]onsidering that the court several times provided the jury with appropriate limiting instructions, and [considering that] the probative value of the evidence outweighed the potential prejudice to defendant ..., we cannot say that [the c]ourt erred by permitting the testimony” ( People v. Shofkom, 63 A.D.3d 1286, 1288, 880 N.Y.S.2d 758, lv. denied 13 N.Y.3d 799, 887 N.Y.S.2d 549, 916 N.E.2d 444, appeal dismissed 13 N.Y.3d 933, 895 N.Y.S.2d 310, 922 N.E.2d 898).
Defendant failed to preserve for our review his contention that he was punished for asserting his right to a trial because he “ ‘did not raise the issue at the time of sentencing’ ” ( People v. Dorn, 71 A.D.3d 1523, 1523–1524, 895 N.Y.S.2d 906; see People v. Coapman, 90 A.D.3d 1681, 936 N.Y.S.2d 454; People v. Brink, 78 A.D.3d 1483, 1485, 910 N.Y.S.2d 606, lv. denied 16 N.Y.3d 742, 917 N.Y.S.2d 623, 942 N.E.2d 1048, reconsideration denied 16 N.Y.3d 828, 921 N.Y.S.2d 192, 946 N.E.2d 180). In any event, that contention lacks merit ( see People v. Stubinger, 87 A.D.3d 1316, 1317, 929 N.Y.S.2d 813; People v. Powell, 81 A.D.3d 1307, 1308, 916 N.Y.S.2d 385, lv. denied 17 N.Y.3d 799, 929 N.Y.S.2d 107, 952 N.E.2d 1102; Brink, 78 A.D.3d at 1485, 910 N.Y.S.2d 606; Dorn, 71 A.D.3d at 1524, 895 N.Y.S.2d 906). Finally, we conclude that the sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.