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

422
KA 08-01897
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, LINDLEY, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

GEORGE BASTIAN, DEFENDANT-APPELLANT.


WYOMING COUNTY-ATTICA LEGAL AID BUREAU, INC., CONFLICT DEFENDERS,
WARSAW (ANNA JOST OF COUNSEL), FOR DEFENDANT-APPELLANT.

GEORGE BASTIAN, DEFENDANT-APPELLANT PRO SE.

THOMAS E. MORAN, DISTRICT ATTORNEY, GENESEO (ERIC R. SCHIENER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Livingston County Court (Dennis S.
Cohen, J.), rendered August 8, 2008. The judgment convicted
defendant, upon a jury verdict, of grand larceny in the fourth degree
and scheme to defraud in the first degree (two counts).

     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 one count of grand larceny in the fourth degree
(Penal Law § 155.30 [1]) and two counts of scheme to defraud in the
first degree (§ 190.65 [1] [a], [b]). Defendant failed to preserve
for our review his contention in his main brief that the conviction of
grand larceny is not supported by legally sufficient evidence inasmuch
as his motion for a trial order of dismissal was not directed at that
count (see CPL 470.05 [2]; People v Gray, 86 NY2d 10, 19). In any
event, we reject that contention, as well as the further contention of
defendant that the evidence is legally insufficient to support the
conviction of scheme to defraud (see generally People v Bleakley, 69
NY2d 490, 495). In addition, viewing the evidence in light of the
elements of the crimes as charged to the jury (see People v Danielson,
9 NY3d 342, 349), we reject defendant’s further contention in his main
brief that the verdict is against the weight of the evidence (see
generally Bleakley, 69 NY2d at 495). Defendant’s contentions
regarding the legal sufficiency of the evidence before the grand jury
raised in his pro se supplemental brief are not properly before us
because such contentions are “not reviewable upon an appeal from an
ensuing judgment of conviction based upon legally sufficient trial
evidence” (People v Pelchat, 62 NY2d 97, 109). Contrary to
defendant’s contention in his pro se supplemental brief, we conclude
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                                                         KA 08-01897

that he received effective assistance of counsel (see generally People
v Baldi, 54 NY2d 137, 147).

     Defendant failed to preserve for our review his contention in his
main and pro se supplemental briefs that he was deprived of a fair
trial by prosecutorial misconduct (see People v Smith, 32 AD3d 1291,
1292, lv denied 8 NY3d 849) and, in any event, that contention lacks
merit. Although a remark by the prosecutor on summation was improper
because it “play[ed] on the sympathies and fears of the jury” (People
v Ortiz-Castro, 12 AD3d 1071, lv denied 4 NY3d 766), that misconduct
was not so egregious as to deprive defendant of a fair trial (see
generally People v Galloway, 54 NY2d 396, 401). In addition, contrary
to defendant’s contention, the prosecutor did not engage in misconduct
by eliciting testimony that defendant had turned off the heat at a
daycare center on the ground that he was angry with the proprietor of
the daycare center. “[T]he challenged testimony was properly
[elicited] since defendant opened the door to the prosecutor’s limited
redirect examination” by questioning the proprietor about calling the
police to register a complaint against defendant (People v Kirker, 21
AD3d 588, 590, lv denied 5 NY3d 853; see People v Wright, 209 AD2d
231, lv denied 85 NY2d 945). We decline to exercise our power to
review defendant’s remaining contentions with respect to alleged
instances of prosecutorial misconduct as a matter of discretion in the
interest of justice (see CPL 470.15 [6] [a]).

     Contrary to defendant’s further contention in his main and pro se
supplemental briefs, County Court’s Molineux rulings were proper and
the court properly denied his motion pursuant to CPL 330.30 based on
the alleged Molineux errors. First, we conclude that the court
properly admitted in evidence bad checks in addition to those at issue
in this case to support their Molineux theory. The record establishes
that defendant wrote those checks on the same closed account at
approximately the same time as the checks at issue in this case.
Thus, the additional checks were properly admitted in evidence where,
as here, they were relevant to “the motive and state of mind [of
defendant] . . . and [were] found [by the court] to be needed as
background material . . . or to complete the narrative of the episode”
(People v Till, 87 NY2d 835, 837 [internal quotation marks omitted]).
Defendant failed to preserve for our review his contention that the
People exceeded the scope of the court’s Molineux ruling (see People v
Bermejo, 77 AD3d 965, 965-966), and we decline to exercise our power
to review it as a matter of discretion in the interest of justice (see
CPL 470.15 [6] [a]).

     “Defendant’s constitutional challenge [in his main brief] to the
persistent felony offender statute is not properly before us, inasmuch
as there is no indication in the record that the Attorney General was
given the requisite notice of that challenge” (People v Perez, 67 AD3d
1324, 1326, lv denied 13 NY3d 941; see generally People v Brown, 64
AD3d 611; People v Mays, 54 AD3d 778, lv denied 11 NY3d 927). In any
event, it is well settled that defendant’s contention that “New York’s
discretionary persistent felony offender sentencing scheme is
constitutionally infirm . . . [is] unavailing” (People v Quinones, 12
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                                                         KA 08-01897

NY3d 116, 122, cert denied ___ US ___, 130 S Ct 104), and we reject
his contentions in his pro se supplemental brief that he was
improperly adjudicated a persistent felon and that the sentence is
unduly harsh and severe.

     The remaining contentions expressly addressed herein are raised
in defendant’s pro se supplemental brief. We reject the contention of
defendant that the court erred in denying his motion to dismiss the
indictment on statutory speedy trial grounds. “Contrary to
defendant’s contention, the People satisfied their obligation pursuant
to CPL 30.30 when they announced their readiness for trial at
defendant’s arraignment on the misdemeanor charges” upon which
defendant was originally prosecuted (People v Piquet, 46 AD3d 1438,
1438-1439, lv denied 10 NY3d 770). Although the People were properly
charged with the delay between their request for an adjournment to
present the matter to a grand jury and their statement of readiness on
the resulting indictment, the total delay that resulted was less than
six months, and thus defendant’s statutory right to a speedy trial was
not violated (see People v Capellan, 38 AD3d 393, lv denied 9 NY3d
873; see generally People v Cooper, 90 NY2d 292, 294). We reject the
further contention of defendant concerning constitutional double
jeopardy violations with respect to several of the checks at issue.
Although defendant was not required to preserve that contention for
our review (see People v Biggs, 1 NY3d 225, 231; People v Michael, 48
NY2d 1, 6-8), and in fact did not do so, “[o]n the record before us,
[we perceive] no constitutional double jeopardy violation[s]” (People
v Dodge, 38 AD3d 1324, 1325, lv denied 9 NY3d 874). Defendant’s
improper subpoena claims involve matters outside the record, and thus
any such claims must be raised by way of a motion pursuant to CPL
article 440 (see generally People v Schrock, 73 AD3d 1429, 1431, lv
denied 15 NY3d 855).

     We have considered the remaining contentions of defendant,
including those raised in his pro se supplemental brief, and conclude
that they are without merit.




Entered:   April 1, 2011                        Patricia L. Morgan
                                                Clerk of the Court
