People v. Iannelli

• Decision Date: 19 December 1986
• Citation: 512 N.Y.S.2d 16,69 N.Y.2d 684,504 N.E.2d 383
• Parties: , 504 N.E.2d 383 The PEOPLE of the State of New York, Respondent, v. Marie IANNELLI, Also Known as Marie Ianelli and Anna Jannelli, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 16

512 N.Y.S.2d 16

69 N.Y.2d 684, 504 N.E.2d 383

The PEOPLE of the State of New York, Respondent, v. Marie IANNELLI, Also Known as Marie Ianelli and Anna Jannelli, Appellant.

Court of Appeals of New York.

Dec. 19, 1986.

Spiros A. Tsimbinos, Kew Gardens, for appellant.

Elizabeth Holtzman, Dist. Atty. (Thomas E. Greiff, Barbara D. Underwood and Peter

A. Weinstein, Brooklyn, of counsel), for respondent.

OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Term should be affirmed.

Viewed in a light most favorable to the People, the evidence adduced at trial was sufficient to establish defendant's commission of aggravated disorderly conduct (Penal Law § 240.21).

Defendant's claim that the statute violates the due process and establishment clauses of the United States Constitution (U.S. Const. 14th and 1st Amends.) has not been preserved for our review. Defendant did not move pursuant to CPL 170.30(1)(a) and CPL 170.35(1)(c) within the time prescribed by CPL 170.30(2) and CPL 255.20(1) for dismissal of the accusatory instrument (compare, People v. Bakolas, 59 N.Y.2d 51, 53, 462 N.Y.S.2d 844, 449 N.E.2d 738), and indeed never made her position on this issue known to the trial court before, during or after the trial. As we noted in People v. Thomas, 50 N.Y.2d 467, 473, 429 N.Y.S.2d 584, 407 N.E.2d 430, "the rule requiring a defendant to preserve his points for appellate review applies generally to claims of error involving Federal constitutional rights". The rule was applied in People v. Dozier, 52 N.Y.2d 781, 783, 436 N.Y.S.2d 620, 417 N.E.2d 1008, to foreclose a constitutional challenge to the statute defining third degree rape (Penal Law § 130.25) based on alleged discrimination on account of sex and violation of due process because it eliminates the mens rea element (another constitutional challenge to the statute, which was properly raised, was considered and rejected) (see also, People v. Drummond, 40 N.Y.2d 990, 391 N.Y.S.2d 67, 359 N.E.2d 663, cert. denied sub nom. New York v. Luis J., 431 U.S. 908, 97 S.Ct. 1706, 52 L.Ed.2d 394).

We have examined defendant's remaining contention and find it to be without merit.

WACHTLER, C.J., and MEYER, SIMONS, KAYE, ALEXANDER, TITONE and HANCOCK, JJ., concur.

Order affirmed in a memorandum.