| People v Manning |
| 2009 NY Slip Op 08311 [67 AD3d 1378] |
| November 13, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Tyrell L.Manning, Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (Joseph E. Fahey, J.), renderedApril 21, 2005. The appeal was held by this Court by order entered June 13, 2008, the decisionwas reserved and the matter was remitted to Onondaga County Court for further proceedings (52AD3d 1295 [2008]). The proceedings were held and completed.
It is hereby ordered that said appeal from the judgment insofar as it imposed a sentence ofincarceration is unanimously dismissed and the judgment is otherwise affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofcriminal contempt in the first degree (Penal Law § 215.51 [b] [v]) and harassment in thesecond degree (§ 240.26 [1]). We previously held the case, reserved decision and remittedthis matter to County Court for assignment of new counsel and "a hearing to determine whetherany period of time between the commencement of the criminal action and the People'sannouncement of readiness for trial is excludable," to enable this Court to decide the issuewhether defense counsel was ineffective in failing to make a speedy trial motion (People vManning, 52 AD3d 1295, 1296 [2008]). At the hearing conducted in accordance with ourremittal, trial counsel for defendant testified that he did not make a speedy trial motion becausehe had not identified any speedy trial issue. The People submitted evidence establishing that theyannounced their readiness for trial within six months from the commencement of the criminalaction. That evidence had not been included in the original record on appeal but trial counsel fordefendant was aware that the People had in fact timely announced their readiness for trial.Although defendant objected to the admission of that evidence as exceeding the scope of ourremittal, we conclude that the court properly admitted that evidence to reflect the informationknown by defendant's trial counsel at the time of trial (see People v Marzug, 280 AD2d974 [2001], lv denied 96 NY2d 904 [2001]). Based on the evidence presented at thehearing upon remittal, we thus conclude that defense counsel was not ineffective for failing tomake a speedy trial motion and that defendant received effective assistance of counsel (seegenerally People v Baldi, 54 NY2d 137, 147 [1981]).
We reject defendant's contention that the court erred in admitting the preliminary hearing[*2]testimony of the complainant in evidence at trial. The Peopleestablished that they exercised the required due diligence in attempting to secure thecomplainant's appearance at the trial but that the complainant was unavailable, and thus theadmission of her preliminary hearing testimony at trial was permissible (see CPL 670.10[1] [b]; People v Arroyo, 54 NY2d 567, 569 [1982], cert denied 456 US 979[1982]; People v Mastrangelo, 203 AD2d 942, 943 [1994], lv denied 83 NY2d912 [1994]). Contrary to the further contention of defendant, the court did not err in itsMolineux ruling inasmuch as the testimony concerning defendant's prior convictions wasrelevant on the issue of intent and its probative value exceeded its potential for prejudice (see People v Freece, 46 AD3d1428 [2007], lv denied 10 NY3d 811 [2008]; People v Miles, 36 AD3d 1021, 1022-1023 [2007], lvdenied 8 NY3d 988 [2007]; see generally People v Molineux, 168 NY 264, 293-294[1901]). Defendant failed to preserve for our review his contention that the witness presentingthat testimony went beyond the court's Molineux ruling (see People v Sabb, 11 AD3d 350,351 [2004], lv denied 4 NY3d 748 [2004]; see also People v Gill, 54 AD3d 965 [2008], lv denied 11NY3d 897 [2008]), and we decline to exercise our power to review it as a matter of discretion inthe interest of justice (see CPL 470.15 [6] [a]). We dismiss the appeal to the extent thatdefendant challenges the severity of the sentence inasmuch as defendant has completed servinghis sentence and that part of the appeal therefore is moot (see People v Griffin, 239AD2d 936 [1997]). We have considered defendant's remaining contentions and conclude thatthey are without merit. Present—Centra, J.P., Peradotto, Carni, Green and Pine, JJ.