| People v Sharp |
| 2013 NY Slip Op 01977 [104 AD3d 1325] |
| March 22, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vChristopher Sharp, Appellant. |
—[*1] Christopher Sharp, defendant-appellant pro se. Lori Pettit Rieman, District Attorney, Little Valley, for respondent.
Appeal from a judgment of the Cattaraugus County Court (Terrence M. Parker, A.J.),rendered November 22, 2011. The judgment convicted defendant, upon a jury verdict, ofcriminal trespass in the second degree, criminal contempt in the first degree (threecounts), possession of burglar's tools and custodial interference in the second degree and,upon his plea of guilty, of driving while intoxicated.
It is hereby ordered that the judgment so appealed from is unanimously modified as amatter of discretion in the interest of justice and on the law by amending the order ofprotection and as modified the judgment is affirmed, and the matter is remitted toCattaraugus County Court for further proceedings.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of, inter alia, three counts of criminal contempt in the first degree (Penal Law§ 215.51 [b] [i]; [c]) and one count of custodial interference in the second degree(§ 135.45 [1]). We reject the contention of defendant that County Court erred indenying that part of his omnibus motion seeking to sever counts eight and nine from thefirst seven counts of the indictment. The counts were properly joined inasmuch as "theyare 'defined by the same or similar statutory provisions and consequently are the same orsimilar in law' " (People vDavis, 19 AD3d 1007, 1007 [2005], lv denied 21 AD3d 1442 [2005],quoting CPL 200.20 [2] [c]), and defendant " 'failed to meet his burden of submittingsufficient evidence of prejudice from the joinder to establish good cause to sever' " (People v Ogborn, 57 AD3d1430, 1430 [2008], lv denied 12 NY3d 786 [2009]; see CPL 200.20[3]).
Defendant further contends that the court erred in denying that part of his omnibusmotion seeking to dismiss count eight of the indictment because the factual allegations inthe indictment, as amplified by the bill of particulars, were insufficient as a matter of lawto support a charge of custodial interference in the second degree. We reject thatcontention. As relevant here, a person is guilty of custodial interference in the seconddegree when, "[b]eing a relative of a child less than sixteen years old, intending to holdsuch child permanently or for a protracted period, and knowing that he has no legal rightto do so, he takes or entices such child from his [*2]lawful custodian" (Penal Law § 135.45 [1]). Theindictment, as amplified by the bill of particulars and responses to a notice to produce,alleged that on or about October 19, 2010, defendant took the child from his mother, thechild's lawful custodian; transported the child to Niagara Falls, New York; and kept thechild in Niagara Falls overnight in violation of an order of protection permittingdefendant to have only limited supervised visitation with the child. We conclude thatthose allegations fall within the "plain, natural meaning" of custodial interference asdefined by Penal Law § 135.45 (1) (People v Ditta, 52 NY2d 657, 660[1981]; see People v Morel, 164 AD2d 677, 680-681 [1991], lv denied78 NY2d 971 [1991]). The sentence is not unduly harsh or severe.
Defendant's remaining contentions are raised in his pro se supplemental brief.Defendant failed to preserve for our review his contention that the evidence is legallyinsufficient to support his conviction of criminal contempt in the first degree as chargedin counts five and nine of the indictment (see People v Gray, 86 NY2d 10, 19[1995]; see also People v Hines, 97 NY2d 56, 61 [2001], rearg denied 97NY2d 678 [2001]). Defendant also failed to preserve for our review his contention thatthe court violated CPL 300.10 with respect to those counts, and we decline to exerciseour power to review that contention as a matter of discretion in the interest of justice(see CPL 470.15 [6] [a]). Defendant likewise failed to preserve for our reviewhis contention that the verdict was inconsistent inasmuch as he failed to object to thealleged inconsistency before the jury was discharged (see People v Semrau, 77 AD3d 1436, 1437-1438 [2010],lv denied 16 NY3d 746 [2011]; People v Camacho, 70 AD3d 1393, 1393 [2010], lvdenied 14 NY3d 886 [2010]). In any event, that contention is without merit (see People v Delancy, 81AD3d 1446 [2011], lv denied 17 NY3d 794 [2011]; see generally Peoplev Tucker, 55 NY2d 1, 6-8 [1981], rearg denied 55 NY2d 1039 [1982]).
We agree with defendant, however, that the court erred in setting the expiration dateof the order of protection in excess of the maximum legal duration. Although defendantfailed to preserve that contention for our review (see People v Nieves, 2 NY3d 310, 315-317 [2004]; People v Mingo, 38 AD3d1270, 1271 [2007]), we exercise our power to review it as a matter of discretion inthe interest of justice (see Mingo, 38 AD3d at 1271; see also CPL 470.15[6] [a]). We therefore modify the judgment by amending the order of protection, and weremit the matter to County Court to specify in the order of protection an expiration datein accordance with CPL 530.12 (5). Further, as defendant notes, the certificate ofconviction incorrectly reflects that he was convicted of two counts of criminal trespass inthe second degree. It must therefore be amended to reflect that he was convicted of asingle count of criminal trespass in the second degree (see People v Anderson, 79AD3d 1738, 1739 [2010], lv denied 16 NY3d 856 [2011]).Present—Smith, J.P., Peradotto, Lindley, Valentino and Whalen, JJ.