| People v Carey |
| 2012 NY Slip Op 01014 [92 AD3d 1224] |
| February 10, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Carl Carey,Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Onondaga County (John J. Brunetti, A.J.),rendered June 9, 2009. The judgment convicted defendant, upon a jury verdict, of course ofsexual conduct against a child in the first degree, rape in the third degree (two counts) andendangering the welfare of a child.
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,inter alia, course of sexual conduct against a child in the first degree (Penal Law § 130.75[1] [b]), arising from his sexual abuse of the victim beginning from the time she was seven yearsold. Defendant failed to preserve for our review his contentions that his conviction of section130.75 (1) (b) violates the ex post facto prohibition in article I (§ 10 [1]) of the USConstitution (see People v Ramos,13 NY3d 881, 882 [2009], rearg denied 14 NY3d 794 [2010]; People v Ruz,70 NY2d 942 [1988]; People vBove, 52 AD3d 1124 [2008];People v Whitfield, 50 AD3d 1580 [2008], lv denied 10 NY3d 965 [2008]), andthat the nearly six-year time frame set forth in that count of the indictment was excessive (seePeople v Soto, 44 NY2d 683 [1978]; People v Erle, 83 AD3d 1442, 1443 [2011], lv denied 17NY3d 794 [2011]; People v Adams,59 AD3d 928 [2009], lv denied 12 NY3d 813 [2009]). We decline to exercise ourpower to address those contentions as a matter of discretion in the interest of justice (seeCPL 470.15 [6] [a]).
We reject defendant's further contention that Supreme Court erred in permitting the People tointroduce evidence of a noncriminal sexual encounter that occurred between defendant and thevictim after she turned 17 years old. The evidence was relevant to "explain the relationshipbetween defendant and the victim . . . , as well as to place the events in question ina believable context and explain the victim's [reason for] reporting defendant's conduct" (People v Haidara, 65 AD3d 974[2009], lv denied 13 NY3d 939 [2010]; see People v Gilley, 4 AD3d 127, 127-128 [2004], lvdenied 2 NY3d 799 [2004]). We note in any event that, "[c]onsidering that the court severaltimes provided the jury with appropriate limiting instructions, and [considering that] theprobative value of the evidence outweighed the potential prejudice to defendant . . ., we cannot say that [the c]ourt erred by permitting the testimony" (People v Shofkom, 63 AD3d1286, 1288 [2009], lv denied 13 NY3d 799 [2009], appeal dismissed 13NY3d 933 [2010]).[*2]
Defendant failed to preserve for our review his contentionthat he was punished for asserting his right to a trial because he " 'did not raise the issue at thetime of sentencing' " (People vDorn, 71 AD3d 1523, 1523 [2010]; see People v Coapman, 90 AD3d 1681 [2011]; People v Brink, 78 AD3d 1483,1485 [2010], lv denied 16 NY3d 742 [2011], reconsideration denied 16 NY3d828 [2011]). In any event, that contention lacks merit (see People v Stubinger, 87 AD3d 1316, 1317 [2011]; People v Powell, 81 AD3d 1307,1308 [2011], lv denied 17 NY3d 799 [2011]; Brink, 78 AD3d at 1485;Dorn, 71 AD3d at 1524). Finally, we conclude that the sentence is not unduly harsh orsevere. Present—Scudder, P.J., Centra, Peradotto, Lindley and Martoche, JJ.