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

762
KA 10-00814
PRESENT: SMITH, J.P., CENTRA, FAHEY, GORSKI, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ANTHONY CARRASQUILLO, DEFENDANT-APPELLANT.


RONALD C. VALENTINE, PUBLIC DEFENDER, LYONS (WILLIAM G. PIXLEY OF
COUNSEL), FOR DEFENDANT-APPELLANT.

RICHARD M. HEALY, DISTRICT ATTORNEY, LYONS (WENDY EVANS LEHMANN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Wayne County Court (Dennis M.
Kehoe, J.), rendered March 2, 2010. The judgment convicted defendant,
upon a jury verdict, of rape in the second degree, criminal sexual act
in the second degree, sexual abuse in the third degree (four counts),
endangering the welfare of a child, rape in the third degree and
perjury in the first degree.

     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 orders of protection and as
modified the judgment is affirmed, and the matter is remitted to Wayne
County Court for further proceedings in accordance with the following
Memorandum: Defendant appeals from a judgment convicting him upon a
jury verdict of, inter alia, rape in the second degree (Penal Law §
130.30 [1]). The sexual crimes of which defendant was convicted arose
from acts that he committed in 2007 and 2009. Defendant contends that
County Court erred in denying his motion in limine seeking to
introduce evidence to explain the presence of DNA material found on
the rape kit performed on the victim after the sexual conduct that
occurred in 2009. In denying the motion, County Court stated that it
could not rule upon the issue until a question was asked and an
objection interposed, thus implicitly indicating that it would
reconsider the issue. We therefore conclude that defendant abandoned
that contention, because he failed to renew his motion to admit the
excluded testimony at the appropriate time specified by the court (see
People v Graves, 85 NY2d 1024, 1027; People v Midura, 54 AD3d 877, lv
denied 11 NY3d 856). In any event, we conclude that defendant’s
contention lacks merit inasmuch as “the connection between the
proffered evidence and the victim’s motive or ability to fabricate
[the] charges against defendant was so tenuous that the evidence was
entirely irrelevant” (People v Segarra, 46 AD3d 363, 364, lv denied 10
NY3d 816).
                                 -2-                           762
                                                         KA 10-00814

     Defendant failed to preserve for our review his contention that
the evidence is legally insufficient to support the conviction of
sexual abuse in the third degree (Penal Law § 130.55) under count six
of the indictment because his motion for a trial order of dismissal
was not “ ‘specifically directed’ ” at the alleged deficiency in the
evidence (People v Gray, 86 NY2d 10, 19). In addition, defendant
failed to renew his motion after presenting evidence (see People v
Hines, 97 NY2d 56, 61, rearg denied 97 NY2d 678). In any event, that
contention is without merit (see People v Sene, 66 AD3d 427, lv denied
13 NY3d 941).

     As defendant contends and the People correctly concede, the court
erred in fixing the duration of the orders of protection because they
exceed the eight-year period following the expiration of the maximum
sentences imposed (see People v Whitfield, 50 AD3d 1580, 1581, lv
denied 10 NY3d 965). In addition, it appears from the record before
us that the court failed to take into account the jail time credit to
which defendant is entitled. Although defendant failed to preserve
his contentions for our review (see People v Nieves, 2 NY3d 310,
315-317), we nevertheless exercise our power to review them as a
matter of discretion in the interest of justice (see CPL 470.15 [6]
[a]). We therefore modify the judgment by amending the orders of
protection to render them in compliance with CPL 530.13 (4) and to
take into account the jail time credit to which defendant may be
entitled, and we remit the matter to County Court to make the
appropriate calculations.

     Contrary to defendant’s further contention, the sentence is not
unduly harsh or severe. We note, however, that the amended
certificate of conviction incorrectly reflects that all of the
sentences are to be served consecutively to each other, and the People
correctly concede that the court directed that the sentences imposed
on certain counts are to be served concurrently with each other. The
amended certificate of conviction must therefore be further amended to
reflect that the sentences imposed on counts one through four are to
be served concurrently with each other, and that the sentences imposed
on counts five through eight are to be served concurrently with each
other but consecutively to counts one through four, and that the
sentence imposed on count nine is to be served consecutively both to
counts one through four and to counts five through eight (see People v
Martinez, 37 AD3d 1099, 1100, lv denied 8 NY3d 947).




Entered:   June 10, 2011                        Patricia L. Morgan
                                                Clerk of the Court
