People v. Mateo

• Decision Date: 03 July 2008
• Docket Number: No. 947 KA 06-01924,947 KA 06-01924
• Citation: People v. Mateo, 53 A.D.3d 1111, 861 N.Y.S.2d 904, 2008 NY Slip Op 6087 (N.Y. App. Div. 2008)
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. PAUL MATEO, Appellant.
• Court: New York Supreme Court — Appellate Division

53 A.D.3d 1111

861 N.Y.S.2d 904

2008 NY Slip Op 6087

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v.PAUL MATEO, Appellant.

No. 947 KA 06-01924

Appellate Division of the Supreme Court of the State of New York, Fourth Department.

Decided July 3, 2008.

Appeal from a judgment of the Cayuga County Court(Mark H. Fandrich, J.), rendered May 9, 2006.The judgment convicted defendant, upon a jury verdict, of promoting prison contraband in the first degree.

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 promoting prison contraband in the first degree (Penal Law § 205.25 [2]).County Court properly precluded defendant from impeaching a defense witness with respect to his allegedly inconsistent testimony at defendant's first trial.The testimony of that witness at the retrial that he did not recall certain details of the incident did not damage or tend to disprove the defense (seePeople v Mejia,273 AD2d 256[2000], lv denied95 NY2d 936[2000];see generallyPeople v Fitzpatrick,40 NY2d 44, 50-52[1976]).Defendant failed to preserve for our review his contention that the court erred in failing to read a note from the jury verbatim into the record (seePeople v Cintron,273 AD2d 84[2000], lv denied95 NY2d 889[2000]), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (seeCPL 470.15 [6][a]).Finally, defendant contends that he was improperly sentenced as a second felony offender based on the People's failure to file a second felony offender statement pursuant to CPL 400.21 (2) following his retrial.Defendant failed to preserve that contention for our review (seePeople v Beu,24 AD3d 1257[2005], lv denied6 NY3d 809[2006]) and, in any event, we conclude under the circumstances of this case that defendant's contention lacks merit.The People filed a second felony offender statement at the first trial and defendant admitted his status as a second felony offender at that time and at sentencing following the retrial.We thus conclude that there was substantial compliance with the statute(seeid.).

Present — Hurlbutt, J.P., Smith, Lunn, Green and Gorski, JJ.