| People v Russell |
| 2017 NY Slip Op 08407 [155 AD3d 1432] |
| November 30, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v Noel T.Russell, Appellant. |
Sandra M. Colatosti, Albany, for appellant.
James R. Farrell, District Attorney, Monticello (Richard K. Caister of counsel), forrespondent.
Egan Jr., J.P. Appeal from a judgment of the County Court of Sullivan County (LaBuda, J.),rendered September 17, 2014, upon a verdict convicting defendant of the crimes of predatorysexual assault (two counts), predatory sexual assault against a child (two counts) and incest in thefirst degree.
When this case was previously before this Court, we dismissed count 7 of the indictment asduplicitous, reversed defendant's convictions on counts 2, 3, 4, 5 and 6 of the indictment andremitted the matter to County Court for a new trial (116 AD3d 1090, 1093 [2014]).[FN*] Following a retrial, defendantwas convicted of two counts of predatory sexual assault, two counts of predatory sexual assaultagainst a child and incest in the first degree. Defendant was thereafter sentenced to an aggregateprison term of 50 years to life and 25 years of postrelease supervision. Defendant nowappeals.
We affirm. Defendant's initial contention that he was denied his right to a fair trial as a resultof the inadequacy of the admonitions that County Court provided to the jury throughout the trialwas not adequately preserved for our review as he failed to render a timely objection beforeCounty Court (see CPL 270.40, 310.10 [2]; 470.05 [2]; People v Bonaparte, 78NY2d 26, 31[*2][1991]; People v Irby, 140 AD3d 1319, 1323 [2016], lv denied 28NY3d 931 [2016]; People vDashnaw, 37 AD3d 860, 862 [2007], lv denied 8 NY3d 945 [2007]). In anyevent, although County Court's admonishments to the jury were less than complete (seeCPL 270.40), considered in the aggregate, we would find, if the issue were properly before us,that County Court's admonishments "adequately conveyed to the jury its function, duties andconduct" (People v Williams, 46AD3d 585, 585-586 [2007] [internal quotation marks and citation omitted], lvdenied 10 NY3d 772 [2008]; seePeople v LaDuke, 140 AD3d 1467, 1470 [2016]; People v Irby, 140 AD3d at1323).
Defendant next contends that County Court erred in denying his request to redact certainhearsay information from the presentence investigation report (hereinafter PSI), namely, astatement by his mother alleging that he had engaged in certain additional uncharged instances ofsexual abuse. Notably, defendant does not challenge the judgment of conviction on this basis, ashe acknowledges that County Court did not rely on this statement in imposing sentence; rather,he argues that, to the extent that this statement has the potential to result in future prejudiceshould he subsequently be considered for parole and/or to the extent that it may negatively effecthis risk level classification, the statement should have been redacted.
"The purpose of a presentence investigation is to provide the court with the best availableinformation upon which to render an individualized sentence" (People v Thomas, 2 AD3d 982,984 [2003] [internal quotation marks and citation omitted], lv denied 1 NY3d 602[2004]), which includes information that may otherwise be inadmissible at trial (see People v Paragallo, 82 AD3d1508, 1509 [2011]). Indeed, where a PSI contains "clearly erroneous information," suchinformation should be redacted based upon the "unjustifiable risk of future adverse effects to[the] defendant" (People v Freeman,67 AD3d 1202, 1202, 1203 [2009]; see People v Taylor, 118 AD3d 1044, 1048 [2014], lvdenied 23 NY3d 1043 [2014]). However, a PSI "may include any relevant information on thehistory of the defendant . . .[,] even offenses for which he [or she] has not beenconvicted" (People v Whalen, 99 AD2d 883, 884 [1984]; accord People vParagallo, 82 AD3d at 1510; seePeople v Jones, 77 AD3d 1178, 1179 [2010], lv denied 16 NY3d 832 [2011]).Here, inasmuch as defendant was provided with an opportunity to challenge the hearsaystatement set forth in the PSI and, given the fact that County Court elected not to give any weightto the statement in question, under the circumstances, we find no basis upon which to redact thePSI (see People v Thomas, 2 AD3d at 984).
We likewise find without merit defendant's contention that the sentence imposed upon hisretrial was harsh and excessive or the product of vindictiveness. The fact that the sentenceimposed after trial has greater than the one offered during plea negotiations is not, standingalone, proof that defendant was penalized for exercising his right to trial (see People v Martinez, 144 AD3d1326, 1327 [2016], lv denied 28 NY3d 1186 [2017]). Moreover, any presumption ofvindictiveness that applied based upon defendant having received a harsher sentence upon retrial(see People v Martinez, 26 NY3d196, 199 [2015]) was overcome by County Court's statements at sentencing (see People v Casanova, 152 AD3d875, 879 [2017], lv denied 30 NY3d 948 [Sept. 13, 2017]). County Court indicatedthat, in imposing sentence, it gave no weight to defendant's previous trials. Rather, the court'ssentence was justified based upon the heinous nature of defendant's crimes, the relationshipbetween defendant and the victim, the victim's particular vulnerability and the fact that, whenthese crimes were committed, defendant remained on felony probation for a previous convictionfor rape in the third degree of an underage female. Under these circumstances, and given the lackof any remorse on the part of defendant, we find no abuse of discretion or extraordinarycircumstances that would warrant a reduction of the sentence in the interest of justice (see People v Hughes, 93 AD3d889, 891 [2012], lv denied 19 NY3d 961 [2012]; People v Alford, 65 AD3d 1392, 1394-1395 [2009], mod onother grounds 14 [*3]NY3d 846 [2010]).
Devine, Clark, Mulvey and Rumsey, JJ., concur. Ordered that the judgment is affirmed.
Footnote *:Defendant's initial trial resultedin a deadlocked jury. During that trial, count 1 of the indictment was dismissed.