| People v Rhodes |
| 2008 NY Slip Op 02505 [49 AD3d 1022] |
| March 20, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Jerry Rhodes,Appellant. |
—[*1] Richard J. McNally Jr., District Attorney, Troy (Anne L.V. Coonrad of counsel), forrespondent.
Carpinello, J. Appeal from a judgment of the County Court of Rensselaer County (McGrath,J.), rendered May 17, 2006, upon a verdict convicting defendant of the crimes of attemptedassault in the third degree, menacing in the second degree and aggravated harassment in thesecond degree.
Defendant stands convicted of attempted assault in the third degree, menacing in the seconddegree and aggravated harassment in the second degree stemming from a series of eventsinvolving his ex-wife on the evening of February 20, 2005. Two of the arguments raised onappeal are not properly before us, namely, the claim that there was legally insufficient evidenceto support the attempted assault and aggravating harassment counts (defense counsel made only ageneral motion to dismiss these counts at the close of the People's proof) (see People vFinger, 95 NY2d 894, 895 [2000]; People v Kearney, 39 AD3d 964, 966 [2007], lv denied 9NY3d 846 [2007]) and that the verdict convicting him of menacing was repugnant to hisacquittal of other charges (defense counsel failed to challenge the verdict before the jury wasdischarged) (see People v Carter, 7NY3d 875, 876 [2006]; People v Alfaro, 66 NY2d 985, 987 [1985]; People vStahl, 53 NY2d 1048, 1050 [1981]; People v Perry, 27 AD3d 952, 953 [2006], lv denied 8NY3d 883 [2007]; People vStanton, 21 AD3d 576, 577 [2005]; compare People v Wallender, 27 AD3d 955, 957 [2006]). Wedecline to exercise our interest of justice jurisdiction with regard to either of these unpreservedissues (see CPL 470.15 [3]).[*2]
Defendant also claims that he was denied a fair trial byrepeated references to his previous imprisonment and his parole status as of February 2005. Withrespect to defendant's previous imprisonment, while his ex-wife made a spontaneous reference toit during her testimony, an immediate objection by defense counsel was sustained and CountyCourt promptly instructed the jury to disregard it. No further curative instruction was requested(see e.g. People v Jones, 38 AD3d1101, 1102 [2007], lv denied 9 NY3d 846 [2007]).
The issue of defendant's parole status came up later, again spontaneously, during thecross-examination of the first defense witness. While no objection was made by defense counselto the content of this witness's answer, he did object when the People later asked a direct questionabout defendant's parole officer. This objection was sustained and the witness was directed not toanswer.
Notwithstanding, the People thereafter asked the two other defense witnesses direct questionsabout defendant's parole status and the issue also came up during certain answers. While this wasclearly improper, defense counsel failed to object or request a mistrial at any time. However, thejury was instructed during County Court's final charge that it was "not allowed to draw anyadverse inference against defendant because he had a parole officer or was on parole." Notably,this instruction was given at the specific request of defense counsel, who acknowledged,following the close of all proof, that references to defendant's parole status crept in during thetrial and obviously believed that any resulting prejudice would be alleviated by this instruction(see People v Heide, 84 NY2d 943, 944 [1994]; People v Williams, 46 NY2d1070, 1071 [1979]). Thus, since the issue was only marginally preserved for review, no witnessdetailed the nature of the crime underlying defendant's parole status and County Court gave aninstruction ameliorating any prejudice to the satisfaction of defense counsel, we are unable toconclude that any error regarding defendant's parole status warrants a new trial (see id.;People v Brooks, 213 AD2d 999, 1000 [1995], lv denied 85 NY2d 970 [1995]).
Finally, we are unpersuaded that County Court failed to provide a meaningful response to aninquiry from the jury during deliberations.
Mercure, J.P., Spain, Rose and Kavanagh, JJ., concur. Ordered that the judgment is affirmed.