| People v Medley |
| 2018 NY Slip Op 06636 [165 AD3d 1585] |
| October 5, 2018 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Brandon Medley, Appellant. |
Michael J. Stachowski, P.C., Buffalo (Michael J. Stachowski of counsel), fordefendant-appellant.
John J. Flynn, District Attorney, Buffalo (Daniel J. Punch of counsel), for respondent.
Appeal from a judgment of the Supreme Court, Erie County (Deborah A. Haendiges, J.),rendered December 20, 2016. The judgment convicted defendant, upon a jury verdict, of burglaryin the second degree, criminal contempt in the first degree and criminal contempt in the seconddegree (three counts).
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, ofburglary in the second degree (Penal Law § 140.25 [2]), criminal contempt in thefirst degree (§ 215.51 [b] [v]), and three counts of criminal contempt in the seconddegree (§ 215.50 [3]). Contrary to defendant's contention, viewing the evidence inlight of the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we concludethat the verdict is not against the weight of the evidence (see generally People v Bleakley,69 NY2d 490, 495 [1987]).
We reject defendant's further contention that Supreme Court erred in allowing the People topresent evidence of three of his prior acts of domestic violence against the victim. The evidencewas properly admitted because it was relevant to defendant's intent and to "provide backgroundinformation concerning the context and history of defendant's relationship with the victim" (People v Wolff, 103 AD3d 1264,1265 [4th Dept 2013], lv denied 21 NY3d 948 [2013]; see People v Cung, 112 AD3d1307, 1309-1310 [4th Dept 2013], lv denied 23 NY3d 961 [2014]; People v McCowan, 45 AD3d 888,890 [3d Dept 2007], lv denied 9 NY3d 1007 [2007]; People v Wright, 167 AD2d959, 959-960 [4th Dept 1990], lv denied 77 NY2d 845 [1991]). Further, "the probativevalue of such testimony exceeded its potential for prejudice" (People v Wertman, 114 AD3d 1279, 1280 [4th Dept 2014], lvdenied 23 NY3d 969 [2014]), "particularly considering the court's limiting instruction to thejury" (People v Williams, 160 AD3d665, 666 [2d Dept 2018], lv denied 31 NY3d 1123 [2018]). Defendant failed topreserve for our review his contention that the limiting instruction was inadequate and confusing(see People v Huck, 1 AD3d935, 936 [4th Dept 2003]), and we decline to exercise our power to review that contention asa matter of discretion in the interest of justice (see CPL 470.15 [6] [a]).
Contrary to defendant's contention, the People laid a proper foundation for the admission inevidence of a recording of a jail telephone conversation between defendant and the victim. Thevictim testified that the recording was "a complete and accurate reproduction of the conversationand ha[d] not been altered" (People v Ely, 68 NY2d 520, 527 [1986]; see People v Lugo, 87 AD3d 1403,1403 [4th Dept 2011], lv denied 18 NY3d 860 [2011]). We reject defendant's furthercontention that he was denied his constitutional right to a speedy trial and due process of lawbecause of the delay between his arrest and trial (see generally People v Taranovich, 37NY2d 442, 445 [1975]; People vHewitt, 144 AD3d 1607, 1608 [4th Dept 2016], lv denied 28 NY3d 1185 [2017];People v Brooks, 140 AD3d1780, 1780-1781 [4th Dept 2016]). Present—Whalen, P.J., Centra, Peradotto, Lindleyand DeJoseph, JJ.