| People v Tumolo |
| 2022 NY Slip Op 01817 [203 AD3d 961] |
| March 16, 2022 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Patrick Tumolo, Appellant. |
Mark Diamond, New York, NY, for appellant.
Raymond A. Tierney, District Attorney, Riverhead, NY (Karla Lato of counsel), forrespondent.
Appeals by the defendant from two judgments of the County Court, Suffolk County(Anthony S. Senft, Jr., J.), both rendered June 27, 2018, convicting him of endangering thewelfare of a child under indictment No. 993-17, upon his plea of guilty, and criminal sexual actin the third degree (two counts) under indictment No. 2599-17, upon a jury verdict, and imposingsentences. The appeal from the judgment rendered under indictment No. 993-17 brings up forreview two orders of protection issued at the time of sentencing.
Ordered that upon the appeal from the judgment rendered under indictment No. 993-17,those portions of the orders of protection which stated that they were issued in accordance withsection 530.12 of the Criminal Procedure Law and directed that they remain in effect until andincluding June 27, 2024, are vacated, on the law and as a matter of discretion in the interest ofjustice, and the matter is remitted to the County Court, Suffolk County, for a new determinationof the duration of the orders of protection and, thereafter, for the issuance of new orders ofprotection, inter alia, stating that they are issued in accordance with section 530.13 of theCriminal Procedure Law; and it is further,
Ordered that the judgments are affirmed.
As to indictment No. 993-17, we find that the record demonstrates that the defendantknowingly, voluntarily, and intelligently waived his right to appeal (see People v Thomas, 34 NY3d545, 564-565 [2019]; People vSanders, 25 NY3d 337 [2015]; People v Lopez, 6 NY3d 248, 248 [2006]). Nonetheless, thedefendant's challenges to two orders of protection issued at the time of sentencing survive hisvalid appeal waiver (see People vThomas, 193 AD3d 889, 889 [2021]; People v Casanova, 177 AD3d 582, 582 [2019]; People v Hanniford, 174 AD3d921, 922 [2019]).
The People, in effect, correctly concede that the orders of protection in this case are governedby CPL 530.13 (4) rather than CPL 530.12 (5) (see id. §§ 530.11,530.12 [5]; 530.13 [4]). Contrary to the defendant's contention, the issuance of the orders ofprotection with respect to the victim's mother and siblings was proper since they were membersof the victim's family and household (see id. § 530.13 [4]; People v Guidice, 183 AD3d 913,913 [2020]; see also People v May, 138 [*2]AD3d 1146,1147 [2016]). The defendant's contention that the County Court erred in issuing the orders ofprotection, because it failed to state the reasons therefor on the record, is unpreserved forappellate review (see CPL 470.05 [2]; People v Nieves, 2 NY3d 310, 316-317 [2004]). In any event, thecontention is without merit.
The defendant's contention with regard to the duration of the orders of protection isunpreserved for appellate review, as the defendant did not challenge the duration of the orders ofprotection at sentencing, or move to amend the orders of protection anytime thereafter(see CPL 470.05 [2]; People v Nieves, 2 NY3d at 316-317). Nonetheless, wereach the issue in the exercise of our interest of justice jurisdiction (see People v Jeremiah, 194 AD3d840, 840 [2021]; People vGabor, 192 AD3d 824, 824 [2021]). The duration of the orders of protection exceededthe maximum time limit set forth in CPL 530.13 (4) since it failed to credit the defendant fortime served. Accordingly, we vacate so much of the orders of protection as directed that theyremain in effect until and including June 27, 2024, and remit the matter to the County Court,Suffolk County, for a new determination of the duration of the orders of protection (seePeople v Jeremiah, 194 AD3d at 840; People v Gabor, 192 AD3d at 824).
As to indictment No. 2599-17, contrary to the People's contention, the defendant preservedfor appellate review his challenge to the legal sufficiency of the evidence (see CPL470.05 [2]; People v Hawkins, 11NY3d 484 [2008]). However, viewing the evidence in the light most favorable to theprosecution (see People v Contes, 60 NY2d 620 [1983]), we find that it was legallysufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, in fulfilling ourresponsibility to conduct an independent review of the weight of the evidence (see CPL470.15 [5]; People v Danielson, 9NY3d 342 [2007]), we nevertheless accord great deference to the jury's opportunity to viewthe witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d383 [2004]). Upon reviewing the record here, we are satisfied that the verdict of guilt was notagainst the weight of the evidence (seePeople v Romero, 7 NY3d 633 [2006]).
Contrary to the People's contention, the defendant's challenge to the County Court's responseto a jury note requesting a read-back of the complainant's testimony is preserved for appellatereview (see CPL 470.05 [2]; People v Mack, 27 NY3d 534, 543 [2016]). However, we find thatthe court's response to the note at issue constituted a provident exercise of discretion (seeCPL 310.30). In any event, any purported error in the court's response did not seriously prejudicethe defendant so as to warrant reversal of the defendant's conviction (see People v Jones,297 AD2d 256, 257 [2002]; see also People v Lourido, 70 NY2d 428, 435 [1987]).
The defendant's contention that the County Court erred in admitting certain text messagesinto evidence because they constituted inadmissible hearsay and improper bolstering is partiallyunpreserved for appellate review (see CPL 470.05 [2]; People v Craig, 187 AD3d 1039,1040 [2020]). In any event, the defendant's contention is without merit, since the text messages atissue were not admitted to prove the truth of their content and were relevant for the nonhearsaypurpose of explaining the relationship between the parties and to complete the narrative of eventsleading to the defendant's arrest (seePeople v Ludwig, 24 NY3d 221, 232 [2014]; People v Caro, 162 AD3d 546, 546 [2018]; see also People v Anderson, 180 AD3d923, 924 [2020], affd 36 NY3d 1109 [2021]). Duffy, J.P., Miller, Zayas andGenovesi, JJ., concur.