Opinion
No. 2017-01284 Ind. No. 2532/15
09-28-2022
The People of the State of New York, respondent, v. Luis A. Rodriguez, appellant.
Patricia Pazner, New York, NY (Samuel Barr of counsel), for appellant. Melinda Katz, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, and Jill A. Gross-Marks of counsel), for respondent.
Patricia Pazner, New York, NY (Samuel Barr of counsel), for appellant.
Melinda Katz, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, and Jill A. Gross-Marks of counsel), for respondent.
VALERIE BRATHWAITE NELSON, J.P., REINALDO E. RIVERA, CHERYL E. CHAMBERS, SHERI S. ROMAN, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Ira H. Margulis, J.), rendered January 12, 2017, convicting him of attempted use of a child in a sexual performance, disseminating indecent material to a minor in the first degree, and endangering the welfare of a child, upon a jury verdict, and imposing sentence. By decision and order dated October 21, 2020, this Court reversed the judgment and remitted the matter to the Supreme Court for further proceedings (see People v Rodriguez, 187 A.D.3d 1063). On May 19, 2022, the Court of Appeals reversed the decision and order of this Court and remitted the matter to this Court for consideration of issues raised but not determined on appeal to this Court (see People v Rodriguez, 38 N.Y.3d 151).
ORDERED that, upon remittitur from the Court of Appeals, the judgment is affirmed.
The defendant's contention that the counts of the indictment charging him with attempted use of a child in a sexual performance and disseminating indecent material to a minor in the first degree were rendered duplicitous by trial testimony is unpreserved for appellate review (see CPL 470.05[2]; People v Becoats, 17 N.Y.3d 643, 650-651; People v Bentley, 186 A.D.3d 844, 845), and we decline to reach it in the exercise of our interest of justice jurisdiction (see CPL 470.15[6]; People v Craig, 187 A.D.3d 1039, 1040; People v Adams, 140 A.D.3d 1179, 1180).
The sentence imposed was not excessive (see People v Suitte, 90 A.D.2d 80).
BRATHWAITE NELSON, J.P., RIVERA, CHAMBERS and ROMAN, JJ., concur.