PEOPLE v. CALDWELL (1997)

Judgment of conviction rendered August 4, 1993 (Rosalyn H. Richter, J.) affirmed.

 Following a jury trial, defendant was convicted of three counts of aggravated harassment in the second degree (Penal Law § 240.30[1]) and related offenses upon evidence, inter alia, that she made a series of offensive and threatening telephone calls to the complainants.   We reject the defendant's principal appellate argument, that evidence of uncharged acts-including earlier telephone calls to and other contacts with the complainants-was improperly received.   Initially, we note that defendant neither challenged the trial court's pre-trial Ventimiglia ruling (People v. Ventimiglia, 52 N.Y.2d 350, 361, 438 N.Y.S.2d 261, 420 N.E.2d 59) on the evidentiary issue, nor objected with sufficient specificity at trial to receipt of the evidence now cited as a basis for reversal.  “Having acquiesced, either by omission or design, to the introduction of [this evidence], the defendant is not permitted to challenge it on appeal” (People v. Morrison, 214 A.D.2d 366, 367, 625 N.Y.S.2d 30;  see, People v. Cuesta, 199 A.D.2d 101, 102, 605 N.Y.S.2d 64, lv. denied 83 N.Y.2d 870, 613 N.Y.S.2d 131, 635 N.E.2d 300).   In any event, even were the issue properly before us, we would find that the evidence was properly admitted since it was probative of defendant's intent and was inextricably interwoven with evidence establishing that defendant was the caller (People v. Ely, 68 N.Y.2d 520, 529, 510 N.Y.S.2d 532, 503 N.E.2d 88;  People v. Shorey, 172 A.D.2d 634, 568 N.Y.S.2d 436, lv. denied 78 N.Y.2d 974, 574 N.Y.S.2d 954, 580 N.E.2d 426).   Moreover, in light of the limiting instructions given by the trial court, the admission of the evidence was not unduly prejudicial (see, People v. Till, 87 N.Y.2d 835, 837, 637 N.Y.S.2d 681, 661 N.E.2d 153;  People v. Alvino, 71 N.Y.2d 233, 241-242, 525 N.Y.S.2d 7, 519 N.E.2d 808).

 Defendant failed to preserve any constitutional challenge to her conviction (see, People v. Iannelli, 69 N.Y.2d 684, 512 N.Y.S.2d 16, 504 N.E.2d 383, cert. denied 482 U.S. 914, 107 S.Ct. 3185, 96 L.Ed.2d 673), and we decline to review her present claims in the interest of justice.   Were we to consider defendant's constitutional points, we would find them lacking in merit.   Defendant was not subjected to “criminal liability for engaging in protected speech;  [her] liability arose from [her] harassing conduct, not from any expression entitled to constitutional protection.”  (People v. Shack, 86 N.Y.2d 529, 536, 634 N.Y.S.2d 660, 658 N.E.2d 706; cf., People v. Dietze, 75 N.Y.2d 47, 550 N.Y.S.2d 595, 549 N.E.2d 1166).

PER CURIAM.