| People v Gucciardo |
| 2015 NY Slip Op 04337 [128 AD3d 983] |
| May 20, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Thomas Gucciardo, Appellant. |
Robert C. Mitchell, Riverhead, N.Y. (Kirk R. Brandt of counsel), for appellant.
Thomas J. Spota, District Attorney, Riverhead, N.Y. (Marion M. Tang of counsel),for respondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County(Braslow, J.), rendered November 22, 2011, convicting him of grand larceny in thesecond degree (two counts) and scheme to defraud in the first degree, after a nonjurytrial, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant contends that the trial court erred in permitting his wife to testify as towhether she had placed stop payment orders on the checks at issue or was aware that theaccounts from which the checks were to be drawn had insufficient funds to cover thechecks, and he further contends that, without that testimony, the evidence was legallyinsufficient to support his convictions of grand larceny in the second degree and schemeto defraud in the first degree. These contentions are unpreserved for appellate review(see CPL 470.05 [2]; People v Santos, 86 NY2d 869 [1995]). In anyevent, the testimony of the defendant's wife was properly admitted and, viewing theevidence in the light most favorable to the prosecution (see People v Danielson, 9NY3d 342, 349 [2007]), we find that it was legally sufficient to establish thedefendant's guilt as to those crimes beyond a reasonable doubt. Moreover, upon ourindependent review pursuant to CPL 470.15 (5), we are satisfied that the verdict of guiltof those crimes was not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]).
The defendant also contends that his waiver of the right to a jury trial was invalid.The defendant's contention is unpreserved for appellate review (see CPL 470.05[2]; People v Johnson, 51 NY2d 986 [1980]; People v Lumpkins, 11 AD3d 563 [2004]). In any event,the record does not support the defendant's contention that the waiver was invalid. Heexecuted a written waiver in open court, and the trial court explained its meaning to him.The record supports the finding that the waiver was made knowingly, intelligently, andvoluntarily (see People vSilva, 91 AD3d 675 [2012]; People v Butler, 17 AD3d 379 [2005]).
The defendant further contends that the trial court committed reversible error when itfailed to protect his wife's Fifth Amendment privilege against self-incrimination. Thiscontention is unpreserved for appellate review, as objections were not registered to thechallenged testimony (seegenerally People v Olibencia, 45 AD3d 607 [2007]). In any event, thedefendant's contention is [*2]without merit. Theassertion, by the defendant's wife, of her privilege against self-incrimination neitherrelieved her from being called as a witness nor from being questioned (see People vColburn, 162 App Div 651 [1914]). The privilege against self-incrimination ispersonal to a nonparty witness, and if such party is ordered or permitted to testify afterinvoking the privilege, it is a matter exclusively between the court and the witness, and adefendant has no standing to challenge the testimony (see People v Kozer, 33AD2d 617 [1969]).
There is also no merit to the defendant's alternative contention that he was deprivedof the effective assistance of counsel by his counsel's failure to object to the questioningof his wife after she unsuccessfully attempted to invoke her Fifth Amendment privilege.Since the defendant had no ground to object to the wife's testimony (see id.;People v Colburn, 162 App Div 651 [1914]), defense counsel was under nocompulsion to register objections which had little or no likelihood of success (see People v Caban, 5 NY3d143, 152 [2005]; People vStultz, 2 NY3d 277, 287 [2004]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80,83 [1982]). Rivera, J.P., Roman, Sgroi and Duffy, JJ., concur.