| People v Garcia |
| 2013 NY Slip Op 06793 [110 AD3d 530] |
| October 17, 2013 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Edison Garcia, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Ryan Gee of counsel), forrespondent.
Judgment, Supreme Court, New York County (Carol Berkman, J., at severancemotion; Analisa Torres, J., at jury trial and sentencing), rendered November 24, 2010, asamended January 12, 2011, convicting defendant of sexual abuse in the first degree andcourse of sexual conduct against a child in the second degree, and sentencing him to anaggregate term of nine years, unanimously affirmed.
Defendant did not preserve his challenge to evidence regarding an unchargedincident of improper conduct toward one of the victims, and we decline to review it inthe interest of justice. As an alternative holding, we find that any error was harmless(see People v Crimmins, 36 NY2d 230 [1975]).
The arresting detective's brief testimony that he knew certain pedigree informationabout defendant before the arrest was likewise harmless. The record does not supportdefendant's assertion that the prosecutor deliberately elicited this testimony.
The court properly exercised its discretion in denying defendant's mistrial motion,made when the mother of one of the victims volunteered uncharged crime evidence whilebeing cross-examined by defense counsel. The drastic remedy of a mistrial was notwarranted, because the curative instruction that the court provided in accordance withdefense counsel's request was sufficient to prevent defendant from being prejudiced(see People v Santiago, 52 NY2d 865 [1981]).
The court properly exercised its discretion in precluding defendant from inquiringinto whether the father of one of the victims raped the mother of the other victim, yearsbefore the children were born. The proffered evidence was collateral to the charges thatdefendant sexually abused the two victims (see People v Aska, 91 NY2d 979,981 [1998]), and defendant's theory of third-party culpability is speculative and meritless(see People v Gamble, 18NY3d 386, 398-399 [2012]). Since defendant never asserted a constitutional right tointroduce this evidence, his constitutional claim is unpreserved (see People v Lane, 7 NY3d888, 889 [2006]), and we decline to review it in the interest of justice. As analternative holding, we also reject it on the merits (see Crane v Kentucky, 476US 683, 689-690 [1986]; Delaware v Van Arsdall, 475 US 673, 678-679[1986]).
The motion court properly exercised its discretion in denying defendant's severance[*2]motion. The counts were properly joined as "similarin law" pursuant to CPL 200.20 (2) (c), and defendant did not make a sufficient showingto warrant a discretionary severance (see CPL 200.20 [3]; People v Lane,56 NY2d 1, 8 [1982]; People v Streitferdt, 169 AD2d 171, 176 [1991], lvdenied 78 NY2d 1015 [1991]). Concur—Acosta, J.P., Saxe, Renwick,DeGrasse and Richter, JJ.