        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

47
KA 09-01194
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, WHALEN, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

FELIX MENDEZ, DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PIOTR BANASIAK OF
COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (William D.
Walsh, J.), rendered May 6, 2009. The judgment convicted defendant,
upon a jury verdict, of course of sexual conduct against a child in
the first degree and endangering the welfare of a child.

     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 course of sexual conduct against a child in the
first degree (Penal Law § 130.75 [1] [b]) and endangering the welfare
of a child (§ 260.10 [1]). We reject defendant’s contention that
County Court committed reversible error in admitting in evidence a
recorded telephone conversation in which defendant allegedly referred
to his commission of prior bad acts. The record establishes that the
court gave the curative instruction requested by defendant. Defendant
did not object further or seek a mistrial, and thus the curative
instruction “must be deemed to have corrected the error to the
defendant’s satisfaction” (People v Heide, 84 NY2d 943, 944). In any
event, we conclude that the curative instruction sufficiently
alleviated any prejudicial effect of permitting the jury to hear the
unredacted recording (see People v Borden, 90 AD3d 1652, 1652, lv
denied 18 NY3d 992). We reject defendant’s further contention that
the court erred in failing to repeat the curative instruction verbatim
in its jury charge. During its charge, the court reminded the jury of
the “cautionary instruction” it had previously given, and we conclude
under the circumstances of this case that the court thereby
sufficiently cautioned the jury concerning the limited purpose for
which the recorded conversation had been admitted (see People v
Williams, 50 NY2d 996, 998). Defendant failed to preserve for our
review his contention that the court erred in admitting portions of
the recorded conversation that allegedly referenced his invocation of
                                 -2-                           47
                                                        KA 09-01194

his right to counsel and the right to remain silent (see CPL 470.05
[2]). In any event, that contention has no merit because the
recording does not contain any reference to the invocation of those
rights during custodial interrogation (cf. People v De George, 73 NY2d
614, 618). We therefore reject defendant’s further contention that
defense counsel was ineffective in failing to object to the admission
of those portions of the recording in evidence (see People v Watson,
90 AD3d 1666, 1667, lv denied 19 NY3d 868).

     Defendant failed to preserve for our review his contention that
his conviction of section 130.75 (1) (b) violates the ex post facto
prohibition in article I (§ 10 [1]) of the US Constitution (see People
v Ramos, 13 NY3d 881, 882, rearg denied 14 NY3d 794; People v Carey,
92 AD3d 1224, 1224, lv denied 18 NY3d 992). In any event, we conclude
that defendant’s contention has no merit (see generally People v
Walter, 5 AD3d 1107, 1108-1109, lv denied 3 NY3d 650, reconsideration
denied 3 NY3d 712), and thus that he also was not denied effective
assistance of counsel based on defense counsel’s failure to advance
that contention (see Watson, 90 AD3d at 1667). Defendant also failed
to preserve for our review his contention that he was
unconstitutionally punished for exercising his right to a trial (see
People v Motzer, 96 AD3d 1635, 1636, lv denied 19 NY3d 1104). In any
event, that contention lacks merit because there is no evidence in the
record that the court was motivated by “vindictiveness” in sentencing
defendant following the trial (People v Patterson, 106 AD2d 520, 521;
see Motzer, 96 AD3d at 1636). Finally, the sentence is not unduly
harsh or severe.




Entered:   March 15, 2013                      Frances E. Cafarell
                                               Clerk of the Court
