CAREY, CARL, PEOPLE v

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 10, 2012
• Docket: KA 09-01250
• Status: Published

Opinion

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department

97 KA 09-01250 PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, AND MARTOCHE, JJ.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

V MEMORANDUM AND ORDER

CARL CAREY, DEFENDANT-APPELLANT.

LINDA M. CAMPBELL, SYRACUSE, FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL OF COUNSEL), FOR RESPONDENT.

Appeal from a judgment of the Supreme Court, Onondaga County (John J. Brunetti, A.J.), rendered June 9, 2009. The judgment convicted defendant, upon a jury verdict, of course of sexual conduct against a child in the first degree, rape in the third degree (two counts) and endangering the welfare of 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 of, inter alia, course of sexual conduct against a child in the first degree (Penal Law § 130.75 [1] [b]), arising from his sexual abuse of the victim beginning from the time she was 7 years old. Defendant failed to preserve for our review his contentions that his conviction of section 130.75 (1) (b) violates the ex post facto prohibition in article I (§ 10 [cl 1]) of the US Constitution (see People v Ramos, 13 NY3d 881, 882, rearg denied 14 NY3d 794; People v Ruz, 70 NY2d 942; People v Bove, 52 AD3d 1124; People v Whitfield, 50 AD3d 1580, lv denied 10 NY3d 965), and that the nearly six-year time frame set forth in that count of the indictment was excessive (see People v Soto, 44 NY2d 683; People v Erle, 83 AD3d 1442, 1443, lv denied 17 NY3d 794; People v Adams, 59 AD3d 928, lv denied 12 NY3d 813). We decline to exercise our power to address those contentions as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]).

We reject defendant’s further contention that Supreme Court erred in permitting the People to introduce evidence of a noncriminal sexual encounter that occurred between defendant and the victim after she turned 17 years old. The evidence was relevant to “explain the relationship between defendant and the victim . . ., as well as to place the events in question in a believable context and explain the victim’s [reason for] reporting defendant’s conduct” (People v -2- 97 KA 09-01250

Haidara, 65 AD3d 974, lv denied 13 NY3d 939; see People v Gilley, 4 AD3d 127, 127-128, lv denied 2 NY3d 799). We note in any event that, “[c]onsidering that the court several times provided the jury with appropriate limiting instructions, and [considering that] the probative value of the evidence outweighed the potential prejudice to defendant . . ., we cannot say that [the c]ourt erred by permitting the testimony” (People v Shofkom, 63 AD3d 1286, 1288, lv denied 13 NY3d 799, appeal dismissed 13 NY3d 933).

Defendant failed to preserve for our review his contention that he was punished for asserting his right to a trial because he “ ‘did not raise the issue at the time of sentencing’ ” (People v Dorn, 71 AD3d 1523, 1523-1524; see People v Coapman, 90 AD3d 1681; People v Brink, 78 AD3d 1483, 1485, lv denied 16 NY3d 742, reconsideration denied 16 NY3d 828). In any event, that contention lacks merit (see People v Stubinger, 87 AD3d 1316, 1317; People v Powell, 81 AD3d 1307, 1308, lv denied 17 NY3d 799; Brink, 78 AD3d at 1485; Dorn, 71 AD3d at 1524). Finally, we conclude that the sentence is not unduly harsh or severe.

Entered: February 10, 2012 Frances E. Cafarell Clerk of the Court