PEOPLE v. MCCANTS (2025)

MEMORANDUM AND ORDER

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 as modified by County Court on defendant's motion pursuant to CPL 330.30 (1), of criminal contempt in the second degree (Penal Law § 215.50 [3]). The prosecution arose from allegations that defendant, in violation of a stay-away order of protection in favor of his former girlfriend, broke into the former girlfriend's residence and subjected her to physical contact. We affirm.

Preliminarily, we note that defendant's notice of appeal does not correctly identify the date on which the judgment was rendered. Nevertheless, inasmuch as the notice of appeal is otherwise accurate, we exercise our discretion, in the interest of justice, and treat the notice of appeal as valid (see CPL 460.10 [6]; People v. Austin, 199 A.D.3d 1383, 1384, 154 N.Y.S.3d 539 [4th Dept. 2021], lv denied 37 N.Y.3d 1159, 160 N.Y.S.3d 719, 181 N.E.3d 1147 [2022]; People v. Mitchell, 93 A.D.3d 1173, 1173, 940 N.Y.S.2d 393 [4th Dept. 2012], lv denied 19 N.Y.3d 999, 951 N.Y.S.2d 475, 975 N.E.2d 921 [2012]).

Defendant contends that the court erred by imposing an inadequate sanction pursuant to CPL 245.80 (1) (a) for the People's belated disclosure of body-worn camera (BWC) footage that showed a police officer serving the order of protection on defendant approximately one week prior to the subject incident. Initially, we note that the Court of Appeals has left open the question whether the disclosure requirements of CPL article 245 apply to cases that, like this case, were commenced before the effective date of the new discovery rules (see People v. King, 42 N.Y.3d 424, 428 n 2, 222 N.Y.S.3d 16, 247 N.E.3d 86 [2024]). We likewise have no occasion to address that issue inasmuch as the People did not dispute the court's application of CPL article 245 following the effective date thereof and do not contest that application on appeal (see People v. Graham, 233 A.D.3d 1361, 1365, 224 N.Y.S.3d 673 [3d Dept. 2024], lv denied 43 N.Y.3d 944, 231 N.Y.S.3d 422, 257 N.E.3d 117 [2025]). With respect to the merits, we conclude that the court did not abuse its discretion in fashioning an appropriate remedy by excluding the BWC footage and precluding any reference thereto (see CPL 245.80 [2]; People v. Bookman, 224 A.D.3d 1269, 1270, 204 N.Y.S.3d 671 [4th Dept. 2024]; see generally People v. Jenkins, 98 N.Y.2d 280, 284, 746 N.Y.S.2d 651, 774 N.E.2d 716 [2002]).

We reject defendant's further contention that the court erred in giving a jury instruction on consciousness of guilt. We conclude that the court “properly delivered a consciousness of guilt charge concerning defendant's statement, made [in the presence of] the arresting officer,” suggesting that he knew he had an order of protection against him, and we note that “any ambiguity [in the statement] was for the jury to consider” (People v. Smith, 8 A.D.3d 113, 113, 778 N.Y.S.2d 491 [1st Dept. 2004], lv denied 3 N.Y.3d 712, 785 N.Y.S.2d 39, 818 N.E.2d 681 [2004]; see generally People v. Yazum, 13 N.Y.2d 302, 304-305, 246 N.Y.S.2d 626, 196 N.E.2d 263 [1963], rearg denied 15 N.Y.2d 679, 255 N.Y.S.2d 1027, 204 N.E.2d 217 [1964]). We also note that the instruction given by the court was consistent with the instruction set forth in the Criminal Jury Instructions (see People v. Taylor, 140 A.D.3d 1738, 1739-1740, 34 N.Y.S.3d 310 [4th Dept. 2016]).