PEOPLE v. MIENKO

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

The PEOPLE of the State of New York, Respondent, v. Roman MIENKO, Defendant-Appellant.

Decided: April 12, 2001

WILLIAMS, J.P., ELLERIN, WALLACH, LERNER and RUBIN, JJ. Sylvia Wertheimer, for Respondent. Susan Light, for Defendant-Appellant.

Judgment, Supreme Court, New York County (Bernard Fried, J.), rendered April 20, 1998, convicting defendant, after a jury trial, of two counts of criminal contempt in the first degree, and sentencing him, as a second felony offender, to concurrent terms of 2 to 4 years, unanimously affirmed.

 Defendant's claim that the court failed to follow the procedure set forth in CPL 200.60 with regard to use of a prior conviction to elevate the level of the crime is unpreserved (see, People v. Santiago, 244 A.D.2d 263, 664 N.Y.S.2d 771, lv. denied 91 N.Y.2d 879, 668 N.Y.S.2d 578, 691 N.E.2d 650;  People v. Strange, 194 A.D.2d 474, 599 N.Y.S.2d 282, lv. denied 82 N.Y.2d 727, 602 N.Y.S.2d 824, 622 N.E.2d 325;  see also, People v. Padro, 75 N.Y.2d 820, 552 N.Y.S.2d 555, 551 N.E.2d 1233), and we decline to review it in the interest of justice.   Were we to review this claim, we would find it to be without merit.   Defense counsel consented to pre-trial arraignment on the information, stated on four occasions that defendant was not disputing his prior conviction and declined the court's offer to revisit the issue during trial.   Furthermore, the conviction was admitted by defendant himself (see, People v. Reid, 232 A.D.2d 173, 174, 648 N.Y.S.2d 12, lv. denied 90 N.Y.2d 862, 661 N.Y.S.2d 189, 683 N.E.2d 1063;  People v. Cloyce, 220 A.D.2d 329, 633 N.Y.S.2d 13).

 The court properly exercised its discretion in admitting limited evidence of defendant's pattern of abusive conduct toward the complainant.   This evidence was necessary background information and was admissible to explain the conduct of the parties (see, People v. Berry, 278 A.D.2d 52, 717 N.Y.S.2d 530;  People v. Pena, 278 A.D.2d 78, 718 N.Y.S.2d 169;  People v. Steinberg, 170 A.D.2d 50, 72-74, 573 N.Y.S.2d 965, affd. 79 N.Y.2d 673, 584 N.Y.S.2d 770, 595 N.E.2d 845).

 The court's Sandoval ruling, permitting questioning regarding defendant's previous convictions for attempted assault and criminal contempt but precluding the People from eliciting the underlying facts as well as various uncharged misconduct unless defendant opened the door, balanced the appropriate factors and was a proper exercise of discretion (see, People v. Walker, 83 N.Y.2d 455, 458-459, 611 N.Y.S.2d 118, 633 N.E.2d 472;  People v. Mattiace, 77 N.Y.2d 269, 275-276, 567 N.Y.S.2d 384, 568 N.E.2d 1189;  People v. Pavao, 59 N.Y.2d 282, 292, 464 N.Y.S.2d 458, 451 N.E.2d 216).

 Defendant's right to present a defense was not improperly limited by the court's Molineux and Sandoval rulings, nor by its determination that defendant could not rely upon the existence of a child custody petition alone to establish his motives for approaching complainant, without some evidence linking the petition to his conduct (see, People v. Reynoso, 73 N.Y.2d 816, 818, 537 N.Y.S.2d 113, 534 N.E.2d 30).

Defendant's application pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 was properly denied.   The record supports the court's determination that the prosecutor provided race- and gender-neutral reasons for the peremptory challenges in question and those findings are entitled to great deference on appeal (see, People v. Hernandez, 75 N.Y.2d 350, 553 N.Y.S.2d 85, 552 N.E.2d 621, affd. 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395).   Defendant's claim that the court was required to set forth a more definite statement of its reasons for finding the People's proffered reasons pretextual is unpreserved (see, People v. Swails, 250 A.D.2d 503, 672 N.Y.S.2d 874, lv. denied 92 N.Y.2d 906, 680 N.Y.S.2d 71, 702 N.E.2d 856), and we decline to review it in the interest of justice.