People v. Schultz

Appellate Division of the Supreme Court of New York

People v. Schultz

266 A.D.2d 919, 698 N.Y.S.2d 180, 1999 N.Y. App. Div. LEXIS 11820

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 12, 1999

StatusPublished

Cited by6 cases

This text of 266 A.D.2d 919 (People v. Schultz) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Schultz, 266 A.D.2d 919, 698 N.Y.S.2d 180, 1999 N.Y. App. Div. LEXIS 11820 (N.Y. Ct. App. 1999).

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Opinion

—Judgment unanimously modified on the law and as modified affirmed in accordance with the following Memorandum: Defendant contends that his conviction of sodomy in the first degree (Penal Law § 130.50), use of a child in a sexual performance (Penal Law § 263.05), promoting a sexual performance by a child (Penal Law § 263.15) and rape in the second degree (Penal Law § 130.30) is not supported by legally sufficient evidence. Because defense counsel made only a general motion to dismiss the indictment on the ground of legally insufficient evidence, his contentions are not preserved for our review (see, People v Gray, 86 NY2d 10, 19). The fact that defendant raised some of those contentions in his motion to set aside the verdict pursuant to CPL 330.30 (1) does not render them preserved for our review. Pursuant to that section, a court may set aside a verdict on grounds that, if raised on appeal, would require reversal as a matter of law, and defendant’s present contentions do not require reversal as a matter of law because they are not preserved for our review (see, CPL 330.30 [1]; People v Sheltray, 244 AD2d 854, 854-855, lv denied 91 NY2d 897).

Likewise, defendant failed to preserve for our review his [920]*920contentions that counts seven, 11, 13, 16 and 17 of the indictment are duplicitous (see. People v Velasquez, 264 AD2d 450; People v Morey, 224 AD2d 730, 731, lv denied 87 NY2d 1022; People v Miller, 221 AD2d 1001). We decline to exercise our power to review those contentions as a matter of discretion in the interest of justice (see, GPL 470.15 [6] [a]).

The sentence is neither unduly harsh nor severe. We modify the judgment, however, by reducing the minimum term of incarceration under count 14 of the indictment from 12 V2 years to 8V3 years to comply with Penal Law § 70.02 as it provided in 1995 when the crime was committed (see, People v Jones, 261 AD2d 920, lv denied 93 NY2d 972). (Appeal from Judgment of Oneida County Court, Donalty, J. — Sodomy, 1st Degree.) Present — Green, J. P., Lawton, Pigott, Jr., Hurlbutt and Callahan, JJ.

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—Judgment unanimously modified on the law and as modified affirmed in accordance with the following Memorandum: Defendant contends that his conviction of sodomy in the first degree (Penal Law § 130.50), use of a child in a sexual performance (Penal Law § 263.05), promoting a sexual performance by a child (Penal Law § 263.15) and rape in the second degree (Penal Law § 130.30) is not supported by legally sufficient evidence. Because defense counsel made only a general motion to dismiss the indictment on the ground of legally insufficient evidence, his contentions are not preserved for our review (see, People v Gray, 86 NY2d 10, 19). The fact that defendant raised some of those contentions in his motion to set aside the verdict pursuant to CPL 330.30 (1) does not render them preserved for our review. Pursuant to that section, a court may set aside a verdict on grounds that, if raised on appeal, would require reversal as a matter of law, and defendant’s present contentions do not require reversal as a matter of law because they are not preserved for our review (see, CPL 330.30 [1]; People v Sheltray, 244 AD2d 854, 854-855, lv denied 91 NY2d 897).

Likewise, defendant failed to preserve for our review his [920]*920contentions that counts seven, 11, 13, 16 and 17 of the indictment are duplicitous (see. People v Velasquez, 264 AD2d 450; People v Morey, 224 AD2d 730, 731, lv denied 87 NY2d 1022; People v Miller, 221 AD2d 1001). We decline to exercise our power to review those contentions as a matter of discretion in the interest of justice (see, GPL 470.15 [6] [a]).

The sentence is neither unduly harsh nor severe. We modify the judgment, however, by reducing the minimum term of incarceration under count 14 of the indictment from 12 V2 years to 8V3 years to comply with Penal Law § 70.02 as it provided in 1995 when the crime was committed (see, People v Jones, 261 AD2d 920, lv denied 93 NY2d 972). (Appeal from Judgment of Oneida County Court, Donalty, J. — Sodomy, 1st Degree.) Present — Green, J. P., Lawton, Pigott, Jr., Hurlbutt and Callahan, JJ.

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266 A.D.2d 919, 698 N.Y.S.2d 180, 1999 N.Y. App. Div. LEXIS 11820, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-schultz-nyappdiv-1999.

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