People v. Cutaia

167 A.D.3d 1534

90 N.Y.S.3d 444

The PEOPLE of the State of New York, Respondent,

v.Alfonso C. CUTAIA, Defendant–Appellant.

1260

KA 17–00960

Supreme Court, Appellate Division, Fourth Department, New York.

Entered: December 21, 2018

DAVID J. FARRUGIA, PUBLIC DEFENDER, LOCKPORT (JOSEPH G. FRAZIER OF COUNSEL), FOR DEFENDANT–APPELLANT.

CAROLINE A. WOJTASZEK, DISTRICT ATTORNEY, LOCKPORT (LAURA T. JORDAN OF COUNSEL), FOR RESPONDENT.

PRESENT: WHALEN, P.J., PERADOTTO, NEMOYER, CURRAN, AND TROUTMAN, JJ.

MEMORANDUM AND ORDER

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, of predatory sexual assault against a child ( Penal Law § 130.96 ). Defendant was acquitted of another count of predatory sexual assault against a child involving a different complainant. We affirm.

Defendant challenges County Court's admission of certain Molineux evidence. That evidence, however, pertained only to the count of which defendant was acquitted, and the court gave extensive limiting instructions forbidding the jury from considering the Molineux evidence in connection with the count of which he was convicted. As such, defendant was not prejudiced by the Molineux evidence at issue, and we therefore reject his assertion that he was denied a fair trial as a result of its admission (see People v. Reynoso–Fabian, 134 A.D.3d 1141, 1146–1147, 20 N.Y.S.3d 479 [3d Dept. 2015] ; see generally People v. Young, 255 A.D.2d 907, 907, 683 N.Y.S.2d 678 [4th Dept. 1998], affd 94 N.Y.2d 171, 701 N.Y.S.2d 309, 723 N.E.2d 58 [1999] ). Defendant's related claim that the admission of the Molineux evidence chilled his right to testify about the charge of which he was convicted necessarily assumes that the jury would have disregarded the court's clear instructions forbidding any consideration of the Molineux evidence in connection with that charge, and the law does not permit such an assumption (see generally People v. Baker, 14 N.Y.3d 266, 274, 899 N.Y.S.2d 733, 926 N.E.2d 240 [2010] ; People v. Alexander, 160 A.D.3d 1370, 1371, 76 N.Y.S.3d 675 [4th Dept. 2018], lv denied 32 N.Y.3d 1001, 86 N.Y.S.3d 760, 111 N.E.3d 1116 [2018] ).

Contrary to defendant's further contention, the court properly denied his motion to sever the two counts for trial (see People v. Rios, 107 A.D.3d 1379, 1380–1381, 966 N.Y.S.2d 626 [4th Dept. 2013], lv denied 22 N.Y.3d 1158, 984 N.Y.S.2d 642, 7 N.E.3d 1130 [2014] ; see also People v. Molyneaux, 49 A.D.3d 1220, 1221, 853 N.Y.S.2d 774 [4th Dept. 2008], lv denied 10 N.Y.3d 937, 862 N.Y.S.2d 344, 892 N.E.2d 410 [2008] ).

We reject defendant's contention that he was deprived of due process by four instances of alleged prosecutorial misconduct on summation. As defendant correctly concedes, the court effectively sustained his objections to all four challenged comments. Because defendant did not seek any further relief in connection with three of the four challenged comments, any prejudice from those three comments was presumptively corrected to his satisfaction (see People v. Heide, 84 N.Y.2d 943, 944, 620 N.Y.S.2d 814, 644 N.E.2d 1370 [1994] ; People v. Carson, 122 A.D.3d 1391, 1393, 997 N.Y.S.2d 881 [4th Dept. 2014], lv denied 25 N.Y.3d 1161, 15 N.Y.S.3d 293, 36 N.E.3d 96 [2015] ). Defendant's mistrial motion with respect to the remaining challenged comment was properly denied because the prosecutor did not actually comment on defendant's failure to testify (see People v. Elliott, 288 A.D.2d 907, 907, 732 N.Y.S.2d 392 [4th Dept. 2001], lv denied 97 N.Y.2d 704, 739 N.Y.S.2d 104, 765 N.E.2d 307 [2002] ; see generally People v. Thomas, 96 A.D.3d 1670, 1673, 949 N.Y.S.2d 545 [4th Dept. 2012], lv denied 19 N.Y.3d 1002, 951 N.Y.S.2d 478, 975 N.E.2d 924 [2012] ).

The sentence is not unduly harsh or severe. We are nevertheless compelled to emphasize once again that, "[c]ontrary to the People's contention, and as we have previously noted, it is well settled that this Court's sentence-review power may be exercised, if the interest of justice warrants, without deference to the sentencing court ..., and that we may substitute our own discretion for that of a trial court which has not abused its discretion in the imposition of a sentence" ( People v. White, 153 A.D.3d 1565, 1568, 62 N.Y.S.3d 236 [4th Dept. 2017], lv denied 30 N.Y.3d 1065, 71 N.Y.S.3d 15, 94 N.E.3d 497 [2017] [internal quotation marks omitted] ).

Finally, we note that the "certificate of disposition" contains multiple errors that must be corrected (see generally People v. Saxton, 32 A.D.3d 1286, 1286, 821 N.Y.S.2d 353 [4th Dept. 2006] ). First, the certificate lists an...