People v. Carrasquillo

• Decision Date: 10 June 2011
• Citation: 2011 N.Y. Slip Op. 04923,925 N.Y.S.2d 743,85 A.D.3d 1618
• Parties: The PEOPLE of the State of New York, Respondent,v.Anthony CARRASQUILLO, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

85 A.D.3d 1618

925 N.Y.S.2d 743

2011 N.Y. Slip Op. 04923

The PEOPLE of the State of New York, Respondent,

v.Anthony CARRASQUILLO, Defendant–Appellant.

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

June 10, 2011.

Ronald C. Valentine, Public Defender, Lyons (William G. Pixley of Counsel), for Defendant–Appellant.Richard M. Healy, District Attorney, Lyons (Wendy Evans Lehmann of Counsel), for Respondent.PRESENT: SMITH, J.P., CENTRA, FAHEY, GORSKI, AND MARTOCHE, JJ.MEMORANDUM:

Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, rape in the second degree (Penal Law § 130.30[1] ). The sexual crimes of which defendant was convicted arose from acts that he committed in 2007 and 2009. Defendant contends that County Court erred in denying his motion in limine seeking to introduce evidence to explain the presence of DNA material found on the rape kit performed on the victim after the sexual conduct that occurred in 2009. In denying the motion, County Court stated that it could not rule upon the issue until a question was asked and an objection interposed, thus implicitly indicating that it would reconsider the issue. We therefore conclude that defendant abandoned that contention, because he failed to renew his motion to admit the excluded testimony at the appropriate time specified by the court ( see People v. Graves, 85 N.Y.2d 1024, 1027, 630 N.Y.S.2d 972, 654 N.E.2d 1220; People v. Midura, 54 A.D.3d 877, 864 N.Y.S.2d 109, lv. denied 11 N.Y.3d 856, 872 N.Y.S.2d 79, 900 N.E.2d 562). In any event, we conclude that defendant's contention lacks merit inasmuch as “the connection between the proffered evidence and the victim's motive or ability to fabricate [the] charges against defendant was so tenuous that the evidence was entirely irrelevant” ( People v. Segarra, 46 A.D.3d 363, 364, 847 N.Y.S.2d 564, lv. denied 10 N.Y.3d 816, 857 N.Y.S.2d 50, 886 N.E.2d 815).

Defendant failed to preserve for our review his contention that the evidence is legally insufficient to support the conviction of sexual abuse in the third degree (Penal Law § 130.55) under count six of the indictment because his motion for a trial order of dismissal was not “ ‘specifically directed’ ” at the alleged deficiency in the evidence ( People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919). In addition, defendant failed to renew his motion after presenting evidence ( see People v. Hines, 97 N.Y.2d 56, 61, 736 N.Y.S.2d 643, 762 N.E.2d 329, rearg. denied 97 N.Y.2d 678, 738 N.Y.S.2d 292, 764 N.E.2d 396). In any event, that contention is without merit ( see People v. Sene, 66 A.D.3d 427, 887 N.Y.S.2d 8, lv. denied 13 N.Y.3d 941, 895 N.Y.S.2d 332, 922 N.E.2d 921).

As defendant contends and the People correctly concede, the court erred in fixing the duration of the orders of protection because they exceed the eight-year period following the expiration of the maximum sentences imposed ( see People v. Whitfield, 50 A.D.3d 1580, 1581, 855 N.Y.S.2d 791, lv. denied 10 N.Y.3d 965, 863 N.Y.S.2d 149, 893 N.E.2d 455). In addition, it appears from the record before us that the court failed to take into account the jail time credit to which defendant is entitled. Although defendant failed to preserve his contentions for our review ( see People v. Nieves, 2 N.Y.3d 310, 315–317, 778 N.Y.S.2d 751, 811 N.E.2d 13), we nevertheless exercise our power to review them as a matter of discretion in the interest of justice ( see CPL 470.15[6][a] ). We therefore modify the...