| People v Bastian |
| 2011 NY Slip Op 02601 [83 AD3d 1468] |
| April 1, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v GeorgeBastian, Appellant. |
—[*1] George Bastian, defendant-appellant pro se. Thomas E. Moran, District Attorney, Geneseo (Eric R. Schiener of counsel), forrespondent.
Appeal from a judgment of the Livingston County Court (Dennis S. Cohen, J.), renderedAugust 8, 2008. The judgment convicted defendant, upon a jury verdict, of grand larceny in thefourth degree and scheme to defraud in the first degree (two counts).
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of onecount of grand larceny in the fourth degree (Penal Law § 155.30 [1]) and two counts ofscheme to defraud in the first degree (§ 190.65 [1] [a], [b]). Defendant failed to preservefor our review his contention in his main brief that the conviction of grand larceny is notsupported by legally sufficient evidence inasmuch as his motion for a trial order of dismissal wasnot directed at that count (see CPL 470.05 [2]; People v Gray, 86 NY2d 10, 19[1995]). In any event, we reject that contention, as well as the further contention of defendantthat the evidence is legally insufficient to support the conviction of scheme to defraud (seegenerally People v Bleakley, 69 NY2d 490, 495 [1987]). In addition, viewing the evidence inlight of the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we rejectdefendant's further contention in his main brief that the verdict is against the weight of theevidence (see generally Bleakley, 69 NY2d at 495). Defendant's contentions regardingthe legal sufficiency of the evidence before the grand jury raised in his pro se supplemental briefare not properly before us because such contentions are "not reviewable upon an appeal from anensuing judgment of conviction based upon legally sufficient trial evidence" (People vPelchat, 62 NY2d 97, 109 [1984]). Contrary to defendant's contention in his pro sesupplemental brief, we conclude that he received effective assistance of counsel (seegenerally People v Baldi, 54 NY2d 137, 147 [1981]).
Defendant failed to preserve for our review his contention in his main and pro sesupplemental briefs that he was deprived of a fair trial by prosecutorial misconduct (see People v Smith, 32 AD3d1291, 1292 [2006], lv denied 8 NY3d 849 [2007]) and, in any event, that contentionlacks merit. Although a remark [*2]by the prosecutor onsummation was improper because it "play[ed] on the sympathies and fears of the jury" (People v Ortiz-Castro, 12 AD3d1071 [2004], lv denied 4 NY3d 766 [2005]), that misconduct was not so egregiousas to deprive defendant of a fair trial (see generally People v Galloway, 54 NY2d 396,401 [1981]). In addition, contrary to defendant's contention, the prosecutor did not engage inmisconduct by eliciting testimony that defendant had turned off the heat at a daycare center onthe ground that he was angry with the proprietor of the daycare center. "[T]he challengedtestimony was properly [elicited] since defendant opened the door to the prosecutor's limitedredirect examination" by questioning the proprietor about calling the police to register acomplaint against defendant (People vKirker, 21 AD3d 588, 590 [2005], lv denied 5 NY3d 853 [2005]; see Peoplev Wright, 209 AD2d 231 [1994], lv denied 85 NY2d 945 [1995]). We decline toexercise our power to review defendant's remaining contentions with respect to alleged instancesof prosecutorial misconduct as a matter of discretion in the interest of justice (see CPL470.15 [6] [a]).
Contrary to defendant's further contention in his main and pro se supplemental briefs, CountyCourt's Molineux rulings were proper and the court properly denied his motion pursuantto CPL 330.30 based on the alleged Molineux errors. First, we conclude that the courtproperly admitted in evidence bad checks in addition to those at issue in this case to support theirMolineux theory. The record establishes that defendant wrote those checks on the sameclosed account at approximately the same time as the checks at issue in this case. Thus, theadditional checks were properly admitted in evidence where, as here, they were relevant to "themotive and state of mind [of defendant] . . . and [were] found [by the court] to beneeded as background material . . . or to complete the narrative of the episode"(People v Till, 87 NY2d 835, 837 [1995] [internal quotation marks omitted]). Defendantfailed to preserve for our review his contention that the People exceeded the scope of the court'sMolineux ruling (see People vBermejo, 77 AD3d 965, 965-966 [2010]), and we decline to exercise our power toreview it as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]).
"Defendant's constitutional challenge [in his main brief] to the persistent felony offenderstatute is not properly before us, inasmuch as there is no indication in the record that the AttorneyGeneral was given the requisite notice of that challenge" (People v Perez, 67 AD3d 1324, 1326 [2009], lv denied 13NY3d 941 [2010]; see generally Peoplev Brown, 64 AD3d 611 [2009]; People v Mays, 54 AD3d 778 [2008], lv denied 11 NY3d927 [2009]). In any event, it is well settled that defendant's contention that "New York'sdiscretionary persistent felony offender sentencing scheme is constitutionally infirm. . . [is] unavailing" (People v Quinones, 12 NY3d 116, 122 [2009], cert denied558 US —, 130 S Ct 104 [2009]), and we reject his contentions in his pro sesupplemental brief that he was improperly adjudicated a persistent felon and that the sentence isunduly harsh and severe.
The remaining contentions expressly addressed herein are raised in defendant's pro sesupplemental brief. We reject the contention of defendant that the court erred in denying hismotion to dismiss the indictment on statutory speedy trial grounds. "Contrary to defendant'scontention, the People satisfied their obligation pursuant to CPL 30.30 when they announcedtheir readiness for trial at defendant's arraignment on the misdemeanor charges" upon whichdefendant was originally prosecuted (People v Piquet, 46 AD3d 1438, 1438-1439 [2007], lv denied10 NY3d 770 [2008]). Although the People were properly charged with the delay betweentheir request for an adjournment to present the matter to a grand jury and their statement ofreadiness on the resulting indictment, the total delay that resulted was less than six months, andthus defendant's statutory right to a speedy trial was not violated (see People v Capellan, 38 AD3d393 [2007], lv denied 9 NY3d 873 [2007]; see generally People v Cooper, 90NY2d 292, 294 [1997]). We reject the further contention of defendant concerning constitutionaldouble jeopardy violations with respect to several of the checks at issue. Although defendant wasnot required to preserve that contention for our review (see People v Biggs, 1 NY3d 225, 231 [2003]; People vMichael, [*3]48 NY2d 1, 6-8 [1979]), and in fact did not doso, "[o]n the record before us, [we perceive] no constitutional double jeopardy violation[s]" (People v Dodge, 38 AD3d 1324,1325 [2007], lv denied 9 NY3d 874 [2007]). Defendant's improper subpoena claimsinvolve matters outside the record, and thus any such claims must be raised by way of a motionpursuant to CPL article 440 (seegenerally People v Schrock, 73 AD3d 1429, 1431 [2010], lv denied 15 NY3d855).
We have considered the remaining contentions of defendant, including those raised in his prose supplemental brief, and conclude that they are without merit. Present—Smith, J.P.,Fahey, Peradotto, Lindley and Martoche, JJ.