| People v Muscarella |
| 2015 NY Slip Op 07122 [132 AD3d 1288] |
| October 2, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vSamuel Muscarella, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Deborah K. Jessey of counsel), fordefendant-appellant.
Frank A. Sedita, III, District Attorney, Buffalo (Nicholas T. Texido of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Kenneth F. Case, J.), renderedOctober 15, 2013. The judgment convicted defendant, upon a jury verdict, of burglary inthe first degree and predatory sexual assault (two counts) and, upon a plea of guilty, ofaggravated harassment in the second degree (six counts).
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a juryverdict, of burglary in the first degree (Penal Law § 140.30 [3]) and twocounts of predatory sexual assault (§ 130.95 [1] [b]) and, upon a guilty plea,of six counts of aggravated harassment in the second degree (§ 240.30 [former (2)]). By making only a general motion for a trial order of dismissal, defendantfailed to preserve for our review his contention that the evidence is legally insufficient tosupport the conviction (see People v Gray, 86 NY2d 10, 19 [1995]). Furthermore,viewing the evidence in light of the elements of the crimes of burglary in the first degreeand predatory sexual assault as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), wereject defendant's contention that the verdict is contrary to the weight of the evidence(see People v Bleakley, 69 NY2d 490, 495 [1987]).
Defendant failed to preserve for our review his contention that County Court erred infailing to specify the dangerous instrument when it charged the jury with respect to thepredatory sexual assault charge in count two of the indictment (see People vCorney, 303 AD2d 1006, 1007 [2003], lv denied 1 NY3d 570 [2003];People v Molling, 238 AD2d 915, 915 [1997]). In any event, we note that theinstruction given by the court was consistent with the pattern Criminal Jury Instructionsfor predatory sexual assault, which does not require the court to specify the dangerousinstrument (see CJI2d[NY] Penal Law § 130.95 [1] [b]).
Contrary to defendant's contention, Penal Law § 240.30 (former [2]) isconstitutional inasmuch as "its proscription is limited to conduct" (People vShack, 86 NY2d 529, 535 [1995]). The concerns of the Court of Appeals withrespect to any proscription of speech in section 240.30 (1) (a) are therefore not relevantto this case (see generallyPeople v Golb, 23 NY3d 455, 467 [2014]).
Defendant further contends that he did not receive a fair trial because the courtimproperly denied his request for a missing witness charge and improperly struck aportion of a police officer's testimony on hearsay grounds. That contention is withoutmerit. " '[D]efendant's request for . . . a [missing witness] charge,made after the close of proof, was untimely' " and, in any event, "defendantfailed to meet his burden of establishing his entitlement to such a charge inasmuch as theuncalled witness's testimony would have been cumulative" (People v Arroyo, 111 AD3d1299, 1300 [2013], lv denied 23 NY3d 960 [2014]). With respect to thepolice officer's testimony, even assuming, arguendo, that the court improperly entertainedthe People's late hearsay objection, we conclude that any error is harmless inasmuch asthe court never [*2]instructed the jury that the testimonywas stricken. The evidence of guilt is overwhelming, and there is "no significantprobability that defendant would have been acquitted but for the error" (People v Brooks, 26 AD3d867, 867 [2006], lv denied 6 NY3d 892 [2006]).
We have examined defendant's remaining contentions and conclude that nonerequires modification or reversal of the judgment. Present—Centra, J.P.,Peradotto, Carni, Whalen and DeJoseph, JJ.