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

346
KA 11-02603
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

CHRISTOPHER SHARP, DEFENDANT-APPELLANT.


CARR SAGLIMBEN LLP, OLEAN (JAY D. CARR OF COUNSEL), FOR
DEFENDANT-APPELLANT.

CHRISTOPHER SHARP, DEFENDANT-APPELLANT PRO SE.

LORI PETTIT RIEMAN, DISTRICT ATTORNEY, LITTLE VALLEY, FOR RESPONDENT.


     Appeal from a judgment of the Cattaraugus County Court (Terrence
M. Parker, A.J.), rendered November 22, 2011. The judgment convicted
defendant, upon a jury verdict, of criminal trespass in the second
degree, criminal contempt in the first degree (three counts),
possession of burglar’s tools and custodial interference in the second
degree and, upon his plea of guilty, of driving while intoxicated.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified as a matter of discretion in the interest of
justice and on the law by amending the order of protection and as
modified the judgment is affirmed, and the matter is remitted to
Cattaraugus County Court for further proceedings.

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of, inter alia, three counts of criminal contempt
in the first degree (Penal Law § 215.51 [b] [i], [c]) and one count of
custodial interference in the second degree (§ 135.45 [1]). We reject
the contention of defendant that County Court erred in denying that
part of his omnibus motion seeking to sever counts eight and nine from
the first seven counts of the indictment. The counts were properly
joined inasmuch as “they are ‘defined by the same or similar statutory
provisions and consequently are the same or similar in law’ ” (People
v Davis, 19 AD3d 1007, 1007, lv denied 21 AD3d 1442, quoting CPL
200.20 [2] [c]), and defendant “ ‘failed to meet his burden of
submitting sufficient evidence of prejudice from the joinder to
establish good cause to sever’ ” (People v Ogborn, 57 AD3d 1430, 1430,
lv denied 12 NY3d 786; see CPL 200.20 [3]).

     Defendant further contends that the court erred in denying that
part of his omnibus motion seeking to dismiss count eight of the
indictment because the factual allegations in the indictment, as
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                                                         KA 11-02603

amplified by the bill of particulars, were insufficient as a matter of
law to support a charge of custodial interference in the second
degree. We reject that contention. As relevant here, a person is
guilty of custodial interference in the second degree when, “[b]eing a
relative of a child less than sixteen years old, intending to hold
such child permanently or for a protracted period, and knowing that he
has no legal right to do so, he takes or entices such child from his
lawful custodian” (Penal Law § 135.45 [1]). The indictment, as
amplified by the bill of particulars and responses to a notice to
produce, alleged that on or about October 19, 2010, defendant took the
child from his mother, the child’s lawful custodian; transported the
child to Niagara Falls, New York; and kept the child in Niagara Falls
overnight in violation of an order of protection permitting defendant
to have only limited supervised visitation with the child. We
conclude that those allegations fall within the “plain, natural
meaning” of custodial interference as defined by Penal Law § 135.45
(1) (People v Ditta, 52 NY2d 657, 660; see People v Morel, 164 AD2d
677, 680-681, lv denied 78 NY2d 971). The sentence is not unduly
harsh or severe.

     Defendant’s remaining contentions are raised in his pro se
supplemental brief. Defendant failed to preserve for our review his
contention that the evidence is legally insufficient to support his
conviction of criminal contempt in the first degree as charged in
counts five and nine of the indictment (see People v Gray, 86 NY2d 10,
19; see also People v Hines, 97 NY2d 56, 61, rearg denied 97 NY2d
678). Defendant also failed to preserve for our review his contention
that the court violated CPL 300.10 with respect to those counts, and
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]).
Defendant likewise failed to preserve for our review his contention
that the verdict was inconsistent inasmuch as he failed to object to
the alleged inconsistency before the jury was discharged
(see People v Semrau, 77 AD3d 1436, 1437-1438, lv denied 16 NY3d 746;
People v Camacho, 70 AD3d 1393, 1393, lv denied 14 NY3d 886). In any
event, that contention is without merit (see People v Delancy, 81 AD3d
1446, lv denied 17 NY3d 794; see generally People v Tucker, 55 NY2d 1,
6-8, rearg denied 55 NY2d 1039).

     We agree with defendant, however, that the court erred in setting
the expiration date of the order of protection in excess of the
maximum legal duration. Although defendant failed to preserve that
contention for our review (see People v Nieves, 2 NY3d 310, 315-317;
People v Mingo, 38 AD3d 1270, 1271), we exercise our power to review
it as a matter of discretion in the interest of justice (see Mingo, 38
AD3d at 1271; see also CPL 470.15 [6] [a]). We therefore modify the
judgment by amending the order of protection, and we remit the matter
to County Court to specify in the order of protection an expiration
date in accordance with CPL 530.12 (5). Further, as defendant notes,
the certificate of conviction incorrectly reflects that he was
convicted of two counts of criminal trespass in the second degree. It
must therefore be amended to reflect that he was convicted of a single
count of criminal trespass in the second degree (see People v
Anderson, 79 AD3d 1738, 1739, lv denied 16 NY3d 856).
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                                           KA 11-02603




Entered:   March 22, 2013         Frances E. Cafarell
                                  Clerk of the Court
