Opinion
166 KA 18-01783
03-26-2021
The PEOPLE of the State of New York, Respondent, v. Jeffrey EMMONS, Defendant-Appellant.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (SARA A. GOLDFARB OF COUNSEL), FOR DEFENDANT-APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (SARA A. GOLDFARB OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CARNI, NEMOYER, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him after a jury trial of criminal mischief in the third degree ( Penal Law § 145.05 [2] ). We affirm.
Defendant's contention that Supreme Court violated his constitutional right to present a defense when it struck part of his trial testimony is unpreserved for our review (see People v. Lane , 7 N.Y.3d 888, 889-890, 826 N.Y.S.2d 599, 860 N.E.2d 61 [2006] ; see generally People v. Flores , 83 A.D.3d 1460, 1460, 919 N.Y.S.2d 747 [4th Dept. 2011], affd 19 N.Y.3d 881, 948 N.Y.S.2d 575, 971 N.E.2d 856 [2012] ). In any event, we conclude that the court neither abused its discretion in striking defendant's testimony, nor deprived defendant of his right to present a defense in doing so (see People v. Morgan , 148 A.D.3d 1590, 1591, 50 N.Y.S.3d 699 [4th Dept. 2017], lv denied 29 N.Y.3d 1083, 64 N.Y.S.3d 173, 86 N.E.3d 260 [2017] ; see generally People v. John , 288 A.D.2d 848, 849, 732 N.Y.S.2d 505 [4th Dept. 2001], lv denied 97 N.Y.2d 705, 739 N.Y.S.2d 106, 765 N.E.2d 309 [2002] ; People v. Sirmons , 242 A.D.2d 883, 884-885, 662 N.Y.S.2d 645 [4th Dept. 1997], lv denied 92 N.Y.2d 1038, 684 N.Y.S.2d 503, 707 N.E.2d 458 [1998] ).
We further reject defendant's contention that the court abused its discretion in its Molineux ruling. It is well established that "[e]vidence of a defendant's prior bad acts may be admissible when it is relevant to a material issue in the case other than defendant's criminal propensity" ( People v. Dorm , 12 N.Y.3d 16, 19, 874 N.Y.S.2d 866, 903 N.E.2d 263 [2009] ). Here, a police officer's testimony about defendant's prior criminal mischief conviction was properly admitted for the purposes of establishing defendant's intent and absence of mistake. Specifically, the challenged testimony was relevant for those purposes because it established that defendant was aware that he could be charged with a criminal offense for damaging police property, i.e., that did not have "any reasonable ground to believe that he ... ha[d] [the] right to" damage property belonging to the police ( Penal Law § 145.05 ). Contrary to defendant's contention, the probative value of that evidence was not outweighed by its potential for prejudice (see generally People v. Alvino , 71 N.Y.2d 233, 242, 525 N.Y.S.2d 7, 519 N.E.2d 808 [1987] ) and, moreover, the court's prompt limiting instruction ameliorated any prejudice (see People v. Elmore , 175 A.D.3d 1003, 1004, 107 N.Y.S.3d 252 [4th Dept. 2019], lv denied 34 N.Y.3d 1158, 120 N.Y.S.3d 277, 142 N.E.3d 1179 [2020] ; People v. Larkins , 153 A.D.3d 1584, 1587, 62 N.Y.S.3d 648 [4th Dept. 2017], lv denied 30 N.Y.3d 1061, 71 N.Y.S.3d 11, 94 N.E.3d 493 [2017] ).
Defendant also contends that the court erred in failing to instruct the jury on a justification defense under Penal Law § 35.05 (2). Defendant, however, failed to request such an instruction or object to the instruction as given at trial and therefore failed to preserve that contention for our review (see People v. Washington , 173 A.D.3d 1644, 1645, 102 N.Y.S.3d 823 [4th Dept. 2019], lv denied 34 N.Y.3d 985, 113 N.Y.S.3d 647, 673, 137 N.E.3d 17, 43 [2019]; People v. Daggett , 150 A.D.3d 1680, 1682, 54 N.Y.S.3d 803 [4th Dept. 2017], lv denied 29 N.Y.3d 1125, 64 N.Y.S.3d 675, 86 N.E.3d 567 [2017] ; People v. Fagan , 24 A.D.3d 1185, 1187, 807 N.Y.S.2d 239 [4th Dept. 2005] ). 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] ).
Finally, we conclude that the sentence is not unduly harsh or severe.