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

1015
KA 09-01941
PRESENT: CENTRA, J.P., FAHEY, SCONIERS, GREEN, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

LON COLDIRON, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (NICHOLAS T. TEXIDO OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (SHAWN P. HENNESSY OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (Thomas P.
Franczyk, J.), rendered September 8, 2009. The judgment convicted
defendant, upon a jury verdict, of arson in the third degree and
attempted grand larceny in the second degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: On appeal from a judgment convicting him upon a jury
verdict of arson in the third degree (Penal Law § 150.10 [1]) and
attempted grand larceny in the second degree (§§ 110.00, 155.40 [1]),
defendant contends that County Court failed to comply with CPL 310.30
in responding to a jury note requesting a readback of certain
testimony. The record establishes that the court gave defense counsel
ample opportunity to provide input prior to the readback, and we thus
conclude that defense counsel’s “silence at a time when any error by
the court could have been obviated by timely objection renders the
[contention] unpreserved” for our review (People v Starling, 85 NY2d
509, 516; see People v Smikle, 82 AD3d 1697). 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
further contention, the court properly allowed the People to present
testimony concerning a prior uncharged arson. That testimony “was
probative of defendant’s motive and intent and provided background
information explaining” defendant’s conduct prior to the fire (People
v Collins, 29 AD3d 434, 434). Nor did the court abuse its discretion
in admitting the photograph of defendant’s dog in evidence, inasmuch
as the photograph was relevant to the prosecution’s theory and thus
was not admitted for the sole purpose of arousing the emotions of the
jury (see People v Hill, 82 AD3d 1715, 1717). Finally, the sentence
                                 -2-                 1015
                                                KA 09-01941

is not unduly harsh or severe.




Entered:   September 30, 2011          Patricia L. Morgan
                                       Clerk of the Court
