| People v Coldiron |
| 2011 NY Slip Op 06782 [87 AD3d 1383] |
| September 30, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Lon Coldiron,Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Shawn P. Hennessy of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Thomas P. Franczyk, J.), renderedSeptember 8, 2009. The judgment convicted defendant, upon a jury verdict, of arson in the thirddegree and attempted grand larceny in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of arson in thethird degree (Penal Law § 150.10 [1]) and attempted grand larceny in the second degree(§§ 110.00, 155.40 [1]), defendant contends that County Court failed to comply withCPL 310.30 in responding to a jury note requesting a readback of certain testimony. The recordestablishes that the court gave defense counsel ample opportunity to provide input prior to thereadback, and we thus conclude that defense counsel's "silence at a time when any error by thecourt could have been obviated by timely objection renders the [contention] unpreserved" for ourreview (People v Starling, 85 NY2d 509, 516 [1995]; see People v Smikle, 82 AD3d 1697 [2011]). We decline toexercise our power to review that contention as a matter of discretion in the interest of justice(see CPL 470.15 [6] [a]). Contrary to defendant's further contention, the court properlyallowed the People to present testimony concerning a prior uncharged arson. That testimony "wasprobative of defendant's motive and intent and provided background information explaining"defendant's conduct prior to the fire (People v Collins, 29 AD3d 434, 434 [2006]). Nor did the courtabuse its discretion in admitting the photograph of defendant's dog in evidence, inasmuch as thephotograph was relevant to the prosecution's theory and thus was not admitted for the solepurpose of arousing the emotions of the jury (see People v Hill, 82 AD3d 1715, 1717 [2011]). Finally, thesentence is not unduly harsh or severe. Present—Centra, J.P., Fahey, Sconiers, Green andMartoche, JJ.