PEOPLE v. LEESON (2002)

 Defendant was convicted following a jury trial of two counts of criminal contempt in the first degree (Penal Law § 215.51[b] [iii], [v] ) and one count of criminal solicitation in the second degree (§ 100.10).   We reject defendant's contention that County Court erred in admitting in evidence an audiotape of a telephone call placed by defendant to the victim.   The court reviewed the quality of the audiotape (see e.g. People v. Lubow, 29 N.Y.2d 58, 68, 323 N.Y.S.2d 829, 272 N.E.2d 331) and determined that it was not “so inaudible and indistinct that the jury would have to speculate concerning its contents” (People v. Cleveland, 273 A.D.2d 787, 788, 709 N.Y.S.2d 751, lv. denied 95 N.Y.2d 864, 715 N.Y.S.2d 218, 738 N.E.2d 366).   Defendant further contends that the telephone call should have been excluded because the People failed to offer in evidence the two other telephone calls also placed by defendant to the victim that same day.   “[Defendant] had ample opportunity to introduce more of the [audio]tape at that time and he did not” (People v. Bell, 249 A.D.2d 777, 779, 671 N.Y.S.2d 878, lv. denied 92 N.Y.2d 922, 680 N.Y.S.2d 463, 703 N.E.2d 275).   We also reject defendant's contention that the court erred in admitting evidence of certain prior bad acts of defendant.   Given the nature of the charges against defendant, the evidence was properly admitted to demonstrate a common scheme or plan to kill or otherwise harm the victim (see e.g. People v. Washpun, 134 A.D.2d 858, 521 N.Y.S.2d 915, lv. denied 70 N.Y.2d 1012, 526 N.Y.S.2d 946, 521 N.E.2d 1089;  People v. Roides, 124 A.D.2d 967, 508 N.Y.S.2d 826, lv. denied 69 N.Y.2d 886, 515 N.Y.S.2d 1034, 507 N.E.2d 1104).   Contrary to defendant's further contention, the verdict is not against the weight of the evidence (see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).

Defendant failed to preserve for our review his contention that the court erred in considering an uncharged crime in sentencing him (see People v. Washington, 291 A.D.2d 780, 781, 737 N.Y.S.2d 895, lv. denied 98 N.Y.2d 682, 746 N.Y.S.2d 472, 774 N.E.2d 237).   In any event, “[t]he court's remarks were insufficient to establish that the court was punishing defendant for crimes other than those for which he was convicted” (People v. Storelli, 216 A.D.2d 891, 891, 629 N.Y.S.2d 353, lv. denied 86 N.Y.2d 803, 632 N.Y.S.2d 516, 656 N.E.2d 615).   The sentence is not unduly harsh or severe.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: