People v. Welden

• Decision Date: 16 June 2016
• Citation: 34 N.Y.S.3d 676,140 A.D.3d 1406,2016 N.Y. Slip Op. 04746
• Parties: The PEOPLE of the State of New York, Respondent, v. Mark J. WELDEN, Appellant.
• Court: New York Supreme Court — Appellate Division

140 A.D.3d 1406

34 N.Y.S.3d 676

2016 N.Y. Slip Op. 04746

The PEOPLE of the State of New York, Respondent,

v.Mark J. WELDEN, Appellant.

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

June 16, 2016.

Robert Gregor, Lake George, for appellant.

Karen Heggen, District Attorney, Ballston Spa (Kristin T. Foust of counsel), for respondent.

Before: McCARTHY, J.P., EGAN JR., LYNCH, DEVINE and MULVEY, JJ.

McCARTHY, J.P.

Appeal from a judgment of the County Court of Saratoga County (Scarano, J.), rendered September 4, 2014, upon a verdict convicting defendant of the crimes of aggravated harassment in the second degree (two counts) and endangering the welfare of a child (two counts).

Defendant was charged by a 12–count indictment with a variety of crimes based on allegations regarding his relationship with his son's 14–year–old girlfriend. After his conviction on two counts of aggravated harassment in the second degree and two counts of endangering the welfare of a child, County Court sentenced defendant to an aggregate prison term of two years. Defendant appeals.

By failing to challenge the indictment within five days of being arraigned on it, defendant waived his right to argue that it should have been dismissed based on a deprivation of his right to testify before the grand jury as to his version of events (see CPL 190.50[5][c] ; People v. Littebrant, 55 A.D.3d 1151, 1153, 867 N.Y.S.2d 550 [2008], lv. denied 12 N.Y.3d 818, 881 N.Y.S.2d 26, 908 N.E.2d 934 [2009] ). In any event, defendant's argument is without merit. A review of the record established that defendant was only restricted from continuing narratives unrelated to the charges at issue, such as a story about chasing deer in a field. Accordingly, were this issue before us, we would find that defendant's right to make a statement about the relevant matters before the grand jury was not abridged (see People v. Smith, 84 N.Y.2d 998, 1001, 622 N.Y.S.2d 507, 646 N.E.2d 809 [1994] ; People v. Dunn, 248 A.D.2d 87, 94–96, 685 N.Y.S.2d 648 [1998] ). Finally, given defendant's extensive criminal history, County Court's imposition of the maximum sentence is neither harsh nor excessive (see People v. Hill, 130 A.D.3d 1305, 1306, 13 N.Y.S.3d 705 [2015], lv. denied 27 N.Y.3d 999, ––– N.Y.S.3d ––––, ––– N.E.3d –––– [2016] ). Defendant's remaining contentions are also without merit.

ORDERED that the judgment is affirmed.

EGAN JR., LYNCH, DEVINE and MULVEY, JJ., concur.