PEOPLE v. MEDLEY (2018)

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, of burglary in the second degree (Penal Law § 140.25 [2] ), criminal contempt in the first degree (§ 215.51[b][v] ), and three counts of criminal contempt in the second degree (§ 215.50[3] ). Contrary to defendant's contention, viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we conclude that the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).

We reject defendant's further contention that Supreme Court erred in allowing the People to present evidence of three of his prior acts of domestic violence against the victim.  The evidence was properly admitted because it was relevant to defendant's intent and to “provide background information concerning the context and history of defendant's relationship with the victim” (People v. Wolff, 103 A.D.3d 1264, 1265, 962 N.Y.S.2d 529 [4th Dept. 2013], lv denied 21 N.Y.3d 948, 968 N.Y.S.2d 10, 990 N.E.2d 144 [2013];  see People v. Cung, 112 A.D.3d 1307, 1309–1310, 978 N.Y.S.2d 497 [4th Dept. 2013], lv denied 23 N.Y.3d 961, 988 N.Y.S.2d 569, 11 N.E.3d 719 [2014];  People v. McCowan, 45 A.D.3d 888, 890, 845 N.Y.S.2d 160 [3d Dept. 2007], lv denied 9 N.Y.3d 1007, 850 N.Y.S.2d 395, 880 N.E.2d 881 [2007];  People v. Wright, 167 A.D.2d 959, 959–960, 562 N.Y.S.2d 301 [4th Dept. 1990], lv denied 77 N.Y.2d 845, 567 N.Y.S.2d 214, 568 N.E.2d 663 [1991] ).  Further, “the probative value of such testimony exceeded its potential for prejudice” (People v. Wertman, 114 A.D.3d 1279, 1280, 980 N.Y.S.2d 688 [4th Dept. 2014], lv denied 23 N.Y.3d 969, 988 N.Y.S.2d 576, 11 N.E.3d 726 [2014] ), “particularly considering the court's limiting instruction to the jury” (People v. Williams, 160 A.D.3d 665, 666, 73 N.Y.S.3d 598 [2d Dept. 2018], lv denied 31 N.Y.3d 1123, 81 N.Y.S.3d 383, 106 N.E.3d 766 [2018] ).  Defendant failed to preserve for our review his contention that the limiting instruction was inadequate and confusing (see People v. Huck, 1 A.D.3d 935, 936, 767 N.Y.S.2d 555 [4th Dept. 2003] ), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).

Contrary to defendant's contention, the People laid a proper foundation for the admission in evidence of a recording of a jail telephone conversation between defendant and the victim.  The victim testified that the recording was “a complete and accurate reproduction of the conversation and ha[d] not been altered” (People v. Ely, 68 N.Y.2d 520, 527, 510 N.Y.S.2d 532, 503 N.E.2d 88 [1986];  see People v. Lugo, 87 A.D.3d 1403, 1403, 930 N.Y.S.2d 114 [4th Dept. 2011], lv denied 18 N.Y.3d 860, 938 N.Y.S.2d 868, 962 N.E.2d 293 [2011] ).  We reject defendant's further contention that he was denied his constitutional right to a speedy trial and due process of law because of the delay between his arrest and trial (see generally People v. Taranovich, 37 N.Y.2d 442, 445, 373 N.Y.S.2d 79, 335 N.E.2d 303 [1975];  People v. Hewitt, 144 A.D.3d 1607, 1608, 41 N.Y.S.3d 620 [4th Dept. 2016], lv. denied 28 N.Y.3d 1185, 52 N.Y.S.3d 711, 75 N.E.3d 103 [2017];  People v. Brooks, 140 A.D.3d 1780, 1780–1781, 32 N.Y.S.3d 408 [4th Dept. 2016] ).