People v. Mendez

• Decision Date: 15 March 2013
• Citation: 104 A.D.3d 1145,2013 N.Y. Slip Op. 01645,960 N.Y.S.2d 575
• Parties: The PEOPLE of the State of New York, Respondent, v. Felix MENDEZ, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

104 A.D.3d 1145
960 N.Y.S.2d 575
2013 N.Y. Slip Op. 01645

The PEOPLE of the State of New York, Respondent,
v.
Felix MENDEZ, Defendant–Appellant.

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

March 15, 2013.

Frank H. Hiscock Legal Aid Society, Syracuse (Piotr Banasiak of Counsel), for Defendant–Appellant.

[960 N.Y.S.2d 576]

William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of Counsel), for Respondent.

PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, WHALEN, AND MARTOCHE, JJ.

MEMORANDUM:

[104 A.D.3d 1145]Defendant appeals from a judgment convicting him upon a jury verdict of course of sexual conduct against a child in the first degree (Penal Law § 130.75[1][b] ) and endangering the welfare of a child (§ 260.10 [1] ). We reject defendant's contention that County Court committed reversible error in admitting in evidence a recorded telephone conversation in which defendant allegedly referred to his commission of prior bad acts. The record establishes that the court gave the curative instruction requested by defendant. Defendant did not object further or seek a mistrial, and thus the curative instruction “must be deemed to have corrected the error to the defendant's satisfaction” ( People v. Heide, 84 N.Y.2d 943, 944, 620 N.Y.S.2d 814, 644 N.E.2d 1370). In any event, we conclude that the curative instruction sufficiently alleviated any prejudicial effect of permitting the jury to hear the unredacted recording ( see People v. Borden, 90 A.D.3d 1652, 1652, 935 N.Y.S.2d 810,lv. denied18 N.Y.3d 992, 945 N.Y.S.2d 646, 968 N.E.2d 1002). We reject defendant's further contention that the court erred in failing to repeat the curative instruction verbatim in its jury charge. During its charge, the court reminded the jury of the “ cautionary instruction” it had previously given, and we conclude under the circumstances of this case that the court thereby sufficiently cautioned the jury concerning the limited purpose for which the recorded conversation had been admitted ( see People v. Williams, 50 N.Y.2d 996, 998, 431 N.Y.S.2d 477, 409 N.E.2d 949). Defendant failed to preserve for our review his contention that the court erred in admitting portions of the recorded conversation that allegedly referenced his invocation of his right to counsel and the right to remain silent ( seeCPL 470.05[2] ). In any event, that contention has no merit because the recording does not contain any reference to the invocation of those rights during custodial interrogation ( cf. People v. De George, 73 N.Y.2d 614, 618, 543 N.Y.S.2d 11, ...