| People v Earl |
| 2015 NY Slip Op 08750 [133 AD3d 875] |
| November 25, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Christopher Earl, Appellant. |
Mark Diamond, New York, N.Y., for appellant.
Janet DiFiore, District Attorney, White Plains, N.Y. (Raffaelina Gianfrancesco,Laurie G. Sapakoff, and Steven A. Bender of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Westchester County(Zambelli, J.), rendered September 10, 2013, convicting him of predatory sexual assault,rape in the first degree, sexual abuse in the first degree (three counts), criminalpossession of a weapon in the third degree, and endangering the welfare of a child, upona jury verdict, and imposing sentence.
Ordered that the judgment is modified, on the law, by vacating the conviction of rapein the first degree, vacating the sentence imposed thereon, and dismissing that count ofthe indictment; as so modified, the judgment is affirmed.
The defendant correctly contends that rape in the first degree is a lesser includedcount of predatory sexual assault (see Penal Law §§ 130.35[1]; 130.95 [1] [b]). Since the defendant's conviction of the greater count operates as adismissal of the lesser count pursuant to CPL 300.40 (3) (b), we vacate the defendant'sconviction of rape in the first degree, and the sentence imposed thereon (see People v Ortiz, 95 AD3d1140, 1141 [2012]).
The defendant's contention that the County Court should have ordered a mistrial orgiven more comprehensive curative instructions when one of the People's witnessesbehaved inappropriately and disruptively during the witness's testimony is unpreservedfor appellate review (see Peoplev Muniz, 44 AD3d 1074 [2007]). In any event, any prejudice to the defendantwas alleviated by the court's curative instruction to the jury to disregard the witness'stestimony and not to speculate as to what the testimony would have been (see People v Benloss, 60 AD3d686, 687 [2009]; People vForte, 4 AD3d 123, 124 [2004]).
The defendant's contention that the County Court and the People failed to complywith CPL 400.21 before he was sentenced as a second felony offender is unpreserved forappellate review (see People vLaterza, 129 AD3d 1105 [2015]). In any event, we find that there wassubstantial compliance with CPL 400.21, and there is no indication that the defendanthad grounds to or intended to challenge the constitutionality of the prior convictions (see People v Evans, 121 AD3d1012, 1013 [2014]).
[*2] Thedefendant's contention, based on CPL 200.60, that the County Court failed to follow theproper procedures for use of a prior conviction to elevate the level of a charged crime isnot preserved for appellate review (see People v Allen, 107 AD3d 818, 819 [2013]). In anyevent, his contention is without merit (see People v Ward, 57 AD3d 582, 583 [2008]).
The defendant's remaining contentions are without merit (see People vWheeler, 67 NY2d 960 [1986]; People v Baldi, 54 NY2d 137, 147 [1981]).Rivera, J.P., Dillon, Chambers and LaSalle, JJ., concur.