| People v Orcutt |
| 2008 NY Slip Op 04177 [51 AD3d 1404] |
| May 2, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Andre T.Orcutt, Appellant. |
—[*1] Scott D. McNamara, District Attorney, Utica (Kurt D. Schultz of counsel), forrespondent.
Appeal from a judgment of the Oneida County Court (Michael L. Dwyer, J.), renderedDecember 18, 2006. The judgment convicted defendant, upon a jury verdict, of criminal sexualact in the first degree and endangering the welfare of a child.
It is hereby ordered that the judgment so appealed from is unanimously modified as a matterof discretion in the interest of justice by reducing the sentence imposed for criminal sexual act inthe first degree to a determinate term of incarceration of six years and as modified the judgmentis affirmed.
Memorandum: Defendant appeals from a judgment convicting him following a jury trial ofcriminal sexual act in the first degree (Penal Law § 130.50 [3]) and endangering thewelfare of a child (Penal Law § 260.10 [1]). Defendant concedes that he failed to preservefor our review his contention that County Court erred in failing to give a limiting instructionconcerning the evidence of uncharged crimes, and we reject his contention that the jury chargewas "so deficient as to amount to no charge at all" such that preservation was not required(People v Williams, 50 NY2d 996, 998 [1980]). We decline to exercise our power toreview defendant's contention as a matter of discretion in the interest of justice (see CPL470.15 [6] [a]). Defendant further contends that he was denied effective assistance of counselbecause defense counsel failed to request the limiting instructions and registered only oneobjection during the three-day trial. "Although the failure to request limiting instructions mayconstitute ineffective assistance of counsel if the error were so serious that defendant did notreceive a fair trial," that is not the case here (People v Carey, 244 AD2d 952, 953 [1997],lv denied 92 NY2d 849 [1998]), and defendant has "failed to satisfy the well-settled, highburden of showing that he was deprived of a fair trial and meaningful representation sufficient towarrant a reversal" (People v Flores, 84 NY2d 184, 189 [1994]; see generally Peoplev Baldi, 54 NY2d 137, 147 [1981]).
The record belies the further contention of defendant that the court failed to make adetermination of his eligibility for youthful offender treatment, inasmuch as defense counselstated on the record that the court had rejected such treatment. In any event, defendant was noteligible for youthful offender treatment. He was convicted of criminal sexual act in the firstdegree (see CPL 720.10 [2] [a] [iii]), and the exceptions set forth in CPL 720.10 (3) donot apply (see People v Victor J., 283 AD2d 205, 206-207 [2001], lv denied 96NY2d 942 [2001]).[*2]
We agree with defendant, however, that the sentence isunduly harsh and severe. Thus, as a matter of discretion in the interest of justice (seegenerally CPL 470.15 [6] [b]), we modify the judgment by reducing the sentence imposedfor criminal sexual act in the first degree to a determinate term of incarceration of six years.Present—Hurlbutt, J.P., Smith, Fahey, Green and Pine, JJ.