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

983
KA 11-01389
PRESENT: WHALEN, P.J., PERADOTTO, NEMOYER, CURRAN, AND TROUTMAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JEFFREY HOUGHTALING, DEFENDANT-APPELLANT.


CHARLES J. GREENBERG, AMHERST, FOR DEFENDANT-APPELLANT.

JEFFREY HOUGHTALING, DEFENDANT-APPELLANT PRO SE.

R. MICHAEL TANTILLO, SPECIAL PROSECUTOR, CANANDAIGUA, FOR RESPONDENT.


     Appeal from a judgment of the Livingston County Court (Robert B.
Wiggins, J.), rendered July 6, 2010. The judgment convicted
defendant, upon a jury verdict, of bail jumping in the second degree.

     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 bail jumping in the second degree (Penal Law
§ 215.56). The evidence, viewed in the light most favorable to the
People (see People v Contes, 60 NY2d 620, 621), is legally sufficient
to support the conviction. Contrary to defendant’s contention, the
People were not required to prove that defendant received notice of
the trial date inasmuch as “the crime of bail jumping does not require
proof of any culpable mental state” (People v White, 115 AD2d 313,
314). In any event, the evidence established that defendant had
constructive knowledge of the trial date (see id.). We therefore
conclude that the People met their burden of presenting legally
sufficient evidence to establish defendant’s guilt “even in the
absence of direct proof that he actually received notice of the
[trial] date” (People v De Stefano, 29 AD3d 1030, 1031). Furthermore,
viewing the evidence in light of the elements of the crime as charged
to the jury (see People v Danielson, 9 NY3d 342, 349), we conclude
that the verdict is not against the weight of the evidence (see
generally People v Bleakley, 69 NY2d 490, 495).

     We reject defendant’s contention that County Court erred in
refusing to grant a mistrial when the prosecutor elicited testimony
from a witness in violation of the court’s Molineux ruling. “ ‘Any
prejudice to defendant that might have arisen from the mention of
uncharged criminal activity was alleviated when [the c]ourt sustained
defendant’s objection and gave prompt curative instructions to the
                                 -2-                           983
                                                         KA 11-01389

jury’ ” (People v Reyes-Paredes, 13 AD3d 1094, 1095, lv denied 4 NY3d
802). Contrary to defendant’s further contention, the court properly
concluded that it was not required to entertain his pro se motion to
dismiss the indictment because at the time defendant made the motion
he was represented by counsel (see People v Rodriguez, 95 NY2d 497,
501-502) and, in any event, there is no indication in the record that
the motion was properly filed in accordance with the requirements of
CPL 255.20 (1).

     We reject defendant’s contention that trial counsel was
ineffective in stipulating to the admission of transcripts from the
trial at which defendant failed to appear. “[D]efendant has not
demonstrated ‘the absence of strategic or other legitimate
explanations for [defense] counsel’s’ stipulation” (People v Johnson,
30 AD3d 1042, 1043, lv denied 7 NY3d 790, reconsideration denied 7
NY3d 902, quoting People v Rivera, 71 NY2d 705, 709). We also reject
defendant’s contention that defense counsel was ineffective in moving
to set aside the verdict pursuant to CPL 330.30 on the ground that it
was not supported by the weight of the evidence. Although we agree
with defendant that the motion was without merit inasmuch as trial
judges are not authorized to set aside a verdict on that ground (see
People v Carter, 63 NY2d 530, 536; People v Lleshi, 100 AD3d 780, 780,
lv denied 20 NY3d 1012), defendant was not thereby denied a fair trial
(see generally People v Flores, 84 NY2d 184, 188-189). The record
belies defendant’s contention that defense counsel was otherwise
ineffective (see generally People v Demus, 82 AD3d 1667, 1668, lv
denied 17 NY3d 815).

     Finally, defendant’s contention in his main and pro se
supplemental briefs that the court should have recused itself is not
properly before us inasmuch as it is based upon “facts . . .
developed in connection with defendant’s [renewed] motion to vacate
the conviction pursuant to CPL 440.10, but defendant did not obtain
permission to appeal from the order denying that motion” (People v
Russin, 277 AD2d 880, 881).




Entered:   November 10, 2016                    Frances E. Cafarell
                                                Clerk of the Court
