This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
-----------------------------------------------------------------
No. 155
The People &c.,
             Respondent,
        v.
Alfred Gary,
             Appellant.




           Erica T. Dubno, for appellant.
           Jason R. Richards, for respondent.




MEMORANDUM:
     The order of the Appellate Division should be affirmed.
     Defendant stands convicted of conspiracy in the fourth
degree.   Prior to his nonjury trial upon an indictment charging
him with numerous crimes incident to his alleged participation in

                               - 1 -
                               - 2 -                         No. 155

a scheme to defraud mortgage lenders, defendant, through trial
counsel, entered into a stipulation deeming certain enumerated
exhibits "admissible as evidence in chief for all purposes."
Among the numerous documents covered by this stipulation was one
from a lender file respecting a mortgage loan made for the
purchase of a property identified as 185 Friends Lane.   That
document, exhibit 17C, was a Request-for-Verification-of-
Employment form respecting putative loan applicant Frank Martin.
The form, signed by "Allen Gary" on November 16, 2006, falsely
represented that Mr. Martin was employed by AG Capital Holdings,
as its Corporate Finance Manager and that his prospects for
continued employment were "good."   At the bottom of the form was
a handwritten notation by an individual identified at trial as a
mortgage company loan officer, stating that on January 12th she
"spoke w[ith] Gary and he QC all info."
     During his trial testimony as a prosecution witness,
erstwhile mortgage broker, codefendant Carlos Irizarry, stated
that he filled out the verification-of-employment form in
consultation with defendant and then forwarded the form to him
for execution.   He reported that the form was faxed back to him
directly from defendant's business, the fax number of which was
in fact emblazened on the top of the form.   He testified without
contemporaneous objection that the handwritten note on the form
confirmed that the loan officer had "quality controlled" the
information on the form by speaking with defendant on January 12,


                               - 2 -
                               - 3 -                         No. 155

2007.   It was not until the following day of the trial and after
the receipt of considerable intervening testimony, that defense
counsel raised a hearsay objection to the receipt in evidence of
the hand-written note and Irizarry's testimony referencing it and
moved to strike the objected-to matter from the record.    The
court denied defendant's application, observing that the notation
had already been the subject of unobjected-to testimony.    The
court later indicated that it would have ruled differently had
defendant's objection been timely.
     Although courts are ordinarily bound to enforce party
stipulations (see Matter of New York, Lackawanna & W. R.R. Co.,
98 NY 447, 453 [1885]), where a party has in the interests of
judicial economy stipulated to the admission of voluminous
materials and there are among them scattered items, both
prejudicial and ordinarily inadmissible that may reasonably have
escaped counsel's attention, there is no rule preventing an
exercise of judicial discretion to relieve the party, at least in
part, from the stipulation, particularly where doing so would not
significantly prejudice the other side.   The trial court here did
not take a contrary view in declining to redact the record as
defendant requested.   It ruled as it did not because it
understood the parties' stipulation categorically to preclude
relief of the sort sought, but because significant unobjected-to
testimony had already been received respecting the disputed
notation on exhibit 17C.   While the court might have exercised


                               - 3 -
                                - 4 -                        No. 155

its discretion differently, its decision not to revisit the issue
of the notation's admissibility, cannot under the circumstances
be characterized as an abuse of discretion, as would be necessary
for it to qualify as a predicate for relief in this Court (see
People v Carroll, 95 NY2d 375, 385 [2000]).   Although the
stipulation was not irreversibly binding, it was at least
presumptively enforceable and defendant offered no plausible
excuse for failing earlier to seek an exception from its
coverage.   Assuming that the disputed notation might have
reasonably escaped notice before trial -- and that is at best
questionable -- it was prominently referenced in Mr. Irizarry's
testimony, but even then elicited no contemporaneous protest.
     This moreover was not a situation in which the receipt of an
extrajudicial statement resulted in a denial of the
constitutional right of confrontation.   The notation was not
testimonial hearsay (see Crawford v Washington, 541 US 36
[2004]); at worst its admission ran counter to evidentiary rules
of nonconstitutional provenance and was, in light of other
evidence in the case received without even belated objection,
practically redundant.   Indeed, a different exercise of
discretion by the trial court to exclude the note and redact
record references to it, would not have materially altered the
evidentiary equation.    The lender's pertinent loan service notes,
also admitted pursuant to the parties' pretrial stipulation,
contain essentially duplicative entries in which the loan officer


                                - 4 -
                                - 5 -                           No. 155

identified as the author of the disputed notation on exhibit 17C,
represented that she telephoned "Al" Gary's business on January
12, 2007 and orally confirmed with an individual referred to as
"Allen Gary" Mr. Martin's employment, position and income.
     We have considered defendant's remaining points and find
them to be without merit.
*   *   *   *   *   *   *   *    *      *   *   *   *   *   *     *   *
Order affirmed, in a memorandum. Chief Judge Lippman and Judges
Pigott, Rivera, Abdus-Salaam, Stein and Fahey concur.

Decided November 18, 2015




                                - 5 -
