| People v Mendez |
| 2013 NY Slip Op 01645 [104 AD3d 1145] |
| March 15, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v FelixMendez, Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel),for respondent.
Appeal from a judgment of the Onondaga County Court (William D. Walsh, J.),rendered May 6, 2009. The judgment convicted defendant, upon a jury verdict, of courseof sexual conduct against a child in the first degree and endangering the welfare of achild.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of course of sexual conduct against a child in the first degree (Penal Law §130.75 [1] [b]) and endangering the welfare of a child (§ 260.10 [1]). We rejectdefendant's contention that County Court committed reversible error in admitting inevidence a recorded telephone conversation in which defendant allegedly referred to hiscommission of prior bad acts. The record establishes that the court gave the curativeinstruction requested by defendant. Defendant did not object further or seek a mistrial,and thus the curative instruction "must be deemed to have corrected the error to thedefendant's satisfaction" (People v Heide, 84 NY2d 943, 944 [1994]). In anyevent, we conclude that the curative instruction sufficiently alleviated any prejudicialeffect of permitting the jury to hear the unredacted recording (see People v Borden, 90 AD3d1652, 1652 [2011], lv denied 18 NY3d 992 [2012]). We reject defendant'sfurther contention that the court erred in failing to repeat the curative instructionverbatim in its jury charge. During its charge, the court reminded the jury of the"cautionary instruction" it had previously given, and we conclude under thecircumstances of this case that the court thereby sufficiently cautioned the juryconcerning the limited purpose for which the recorded conversation had been admitted(see People v Williams, 50 NY2d 996, 998 [1980]). Defendant failed to preservefor our review his contention that the court erred in admitting portions of the recordedconversation that allegedly referenced his invocation of his right to counsel and the rightto remain silent (see CPL 470.05 [2]). In any event, that contention has no meritbecause the recording does not contain any reference to the invocation of those rightsduring custodial interrogation (cf. People v De George, 73 NY2d 614, 618[1989]). We therefore reject defendant's further contention that defense counsel wasineffective in failing to object to the admission of those portions of the recording inevidence (see People vWatson, 90 AD3d 1666, 1667 [2011], lv denied 19 NY3d 868 [2012]).[*2]
Defendant failed to preserve for our review hiscontention that his conviction of section 130.75 (1) (b) violates the ex post factoprohibition in article I (§ 10 [1]) of the US Constitution (see People v Ramos, 13 NY3d881, 882 [2009], rearg denied 14 NY3d 794 [2010]; People v Carey, 92 AD3d1224, 1224 [2012], lv denied 18 NY3d 992 [2012]). In any event, weconclude that defendant's contention has no merit (see generally People v Walter, 5 AD3d 1107, 1108-1109[2004], lv denied 3 NY3d 650 [2004], 3 NY3d 712 [2004]), and thus that he alsowas not denied effective assistance of counsel based on defense counsel's failure toadvance that contention (see Watson, 90 AD3d at 1667). Defendant also failed topreserve for our review his contention that he was unconstitutionally punished forexercising his right to a trial (see People v Motzer, 96 AD3d 1635, 1636 [2012], lvdenied 19 NY3d 1104 [2012]). In any event, that contention lacks merit becausethere is no evidence in the record that the court was motivated by "vindictiveness" insentencing defendant following the trial (People v Patterson, 106 AD2d 520, 521[1984]; see Motzer, 96 AD3d at 1636). Finally, the sentence is not unduly harshor severe. Present—Scudder, P.J., Peradotto, Carni, Whalen and Martoche, JJ.