| People v Cutaia |
| 2018 NY Slip Op 08816 [167 AD3d 1534] |
| December 21, 2018 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Alfonso C. Cutaia, Appellant. |
David J. Farrugia, Public Defender, Lockport (Joseph G. Frazier of counsel), fordefendant-appellant.
Caroline A. Wojtaszek, District Attorney, Lockport (Laura T. Jordan of counsel), forrespondent.
Appeal from a judgment of the Niagara County Court (Matthew J. Murphy, III, J.), renderedJanuary 31, 2017. The judgment convicted defendant, upon a jury verdict, of predatory sexualassault against a child.
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, ofpredatory sexual assault against a child (Penal Law § 130.96). Defendant wasacquitted of another count of predatory sexual assault against a child involving a differentcomplainant. We affirm.
Defendant challenges County Court's admission of certain Molineux evidence. Thatevidence, however, pertained only to the count of which defendant was acquitted, and the courtgave extensive limiting instructions forbidding the jury from considering the Molineuxevidence in connection with the count of which he was convicted. As such, defendant was notprejudiced by the Molineux evidence at issue, and we therefore reject his assertion that hewas denied a fair trial as a result of its admission (see People v Reynoso-Fabian, 134 AD3d 1141, 1146-1147 [3dDept 2015]; see generally People v Young, 255 AD2d 907, 907 [4th Dept 1998], affd94 NY2d 171 [1999]). Defendant's related claim that the admission of the Molineuxevidence chilled his right to testify about the charge of which he was convicted necessarilyassumes that the jury would have disregarded the court's clear instructions forbidding anyconsideration of the Molineux evidence in connection with that charge, and the law doesnot permit such an assumption (seegenerally People v Baker, 14 NY3d 266, 274 [2010]; People v Alexander, 160 AD3d 1370, 1371 [4th Dept 2018], lvdenied 32 NY3d 1001 [2018]).
Contrary to defendant's further contention, the court properly denied his motion to sever thetwo counts for trial (see People vRios, 107 AD3d 1379, 1380-1381 [4th Dept 2013], lv denied 22 NY3d 1158[2014]; see also People vMolyneaux, 49 AD3d 1220, 1221 [4th Dept 2008], lv denied 10 NY3d 937[2008]).
We reject defendant's contention that he was deprived of due process by four instances ofalleged prosecutorial misconduct on summation. As defendant correctly concedes, the courteffectively sustained his objections to all four challenged comments. Because defendant did notseek any further relief in connection with three of the four challenged comments, any prejudicefrom those three comments was presumptively corrected to his satisfaction (see People vHeide, 84 NY2d 943, 944 [1994]; People v Carson, 122 AD3d 1391, 1393 [4th Dept 2014], lvdenied 25 NY3d 1161 [2015]). Defendant's mistrial motion with respect to the remainingchallenged comment was properly denied because the prosecutor did not actually comment ondefendant's failure to testify (see People v Elliott, 288 AD2d 907, 907 [4th Dept 2001],lv denied 97 NY2d 704 [2002]; see generally People v Thomas, 96 AD3d 1670, 1673 [4th Dept2012], lv denied 19 NY3d 1002 [2012]).
The sentence is not unduly harsh or severe. We are nevertheless compelled to emphasizeonce again that, "[c]ontrary to the People's contention, and as we have previously noted, it is wellsettled that this Court's sentence-review power may be exercised, if the interest of justicewarrants, without deference to the sentencing court . . . , and that we may substituteour own discretion for that of a trial court which has not abused its discretion in the imposition ofa sentence" (People v White, 153AD3d 1565, 1568 [4th Dept 2017], lv denied 30 NY3d 1065 [2017] [internalquotation marks omitted]).
Finally, we note that the "certificate of disposition" contains multiple errors that must becorrected (see generally People vSaxton, 32 AD3d 1286, 1286 [4th Dept 2006]). First, the certificate lists an incorrectdate for the underlying offense, and it must be amended to reflect the correct date range specifiedin count one of the indictment. Second, the certificate incorrectly states that count one of theindictment was "reduced" at some point during the proceedings, and this notation must bestricken. Third, the certificate does not clearly specify the jury's verdict on each count, and itmust be amended to clearly indicate that defendant was convicted of count one and acquitted ofcount two. Fourth, the certificate incorrectly states that the court assessed only a $325"surcharge" at sentencing; rather, the court assessed a $300 mandatory surcharge, a $50 DNAdatabank fee, a $25 crime victim assistance fee, and a $50 sex offender registration fee, and thecertificate must be amended to correctly delineate the various fees and surcharges assessed.Present—Whalen, P.J., Peradotto, NeMoyer, Curran and Troutman, JJ.