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

226
KA 10-00616
PRESENT: SCUDDER, P.J., SMITH, FAHEY, CARNI, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

STUART J. DIZAK, DEFENDANT-APPELLANT.


BERNARD H. UDELL, BROOKLYN, FOR DEFENDANT-APPELLANT.

MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (LESLIE E. SWIFT OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Patricia D.
Marks, J.), rendered December 4, 2009. The judgment convicted
defendant, upon a jury verdict, of conspiracy in the second degree
(two counts) and criminal solicitation in the second 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 two counts each of conspiracy in the second
degree (Penal Law § 105.15) and criminal solicitation in the second
degree (§ 100.10). We conclude at the outset, to the extent the
People contend that the appeal must be dismissed because defendant
failed to serve his notice of appeal in a timely manner, that
contention lacks merit. Pursuant to CPL 460.10 (1) (b), “[i]f the
defendant is the appellant, he [or she] must, within [30 days after
sentence is imposed], serve a copy of [the] notice of appeal upon the
district attorney of the county embracing the criminal court in which
the judgment . . . being appealed was entered.” Any defect in service
of the notice of appeal here, however, is not fatal. “[T]he People
waived any objection to defendant’s failure to serve the notice of
appeal by responding to his appeal on the merits rather than filing a
motion to dismiss the appeal at some earlier juncture . . . The
People, moreover, have failed to demonstrate any prejudice as a result
of defendant’s alleged failure to comply with CPL 460.10 (1) (b)”
(People v Sayles, 292 AD2d 641, 642 n, lv denied 98 NY2d 681).

     Turning to the merits, we reject defendant’s contention that
County Court erred in limiting his cross-examination of the second
coconspirator to testify. We agree with defendant, however, that the
court erred in limiting his cross-examination of the first
coconspirator to testify. “[C]urtailment [of cross-examination] will
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                                                         KA 10-00616

be judged improper when it keeps from the jury relevant and important
facts bearing on the trustworthiness of crucial testimony” (People v
Gross, 71 AD3d 1526, 1527, lv denied 15 NY3d 774 [internal quotation
marks omitted]). Although the court providently exercised its
discretion by refusing to permit defendant to inquire with respect to
that witness’s youthful offender adjudication (see People v Smith, 90
AD3d 1565, 1566; see generally People v Cook, 37 NY2d 591, 595), it
erred in limiting defendant’s cross-examination concerning the
circumstances underlying the youthful offender adjudication and that
witness’s disorderly conduct conviction (see People v Gray, 84 NY2d
709, 712; People v Lucius, 289 AD2d 963, 964, lv denied 98 NY2d 638;
see generally Gross, 71 AD3d at 1527). “We . . . conclude, however,
that the error is harmless where, as here, ‘the witness[’s] prior
criminal history was extensively explored on cross-examination[,]
although not totally or definitively set forth as the defendant may
have wished’ . . . The record establishes that the court permitted
defense counsel to impeach the witness with a litany of other prior
bad acts, and thus we conclude that there is no reasonable possibility
that the error might have contributed to defendant’s conviction”
(Lucius, 289 AD2d at 964; see generally People v Crimmins, 36 NY2d
230, 237). We reject defendant’s further contention that the People
violated CPL 240.45 based on their failure to comply with their
relevant disclosure obligations (see People v Griffin, 48 AD3d 894,
895, lv denied 10 NY3d 959).

     Contrary to defendant’s contention, the court’s Molineux ruling
was not an abuse of discretion (see People v Dorm, 12 NY3d 16, 19;
People v DiTucci, 81 AD3d 1249, 1250, lv denied 17 NY3d 794). The
evidence in question was relevant to defendant’s motive and intent
(see People v Kelly, 71 AD3d 1520, 1521, lv denied 15 NY3d 775; see
also People v Bryant, 74 AD3d 1794, 1795, lv denied 15 NY3d 802, 919).
In addition, the court “properly balanced the probative value of the
evidence against its potential for prejudice to defendant” (People v
Presha, 83 AD3d 1406, 1407; see Kelly, 71 AD3d at 1521). Defendant
failed to preserve for our review two of his six contentions
concerning alleged instances of prosecutorial misconduct and, in any
event, “ ‘any alleged [prosecutorial] misconduct was not so pervasive
or egregious as to deprive defendant of a fair trial’ ” (People v
Szyzskowski, 89 AD3d 1501, 1503).

     We further conclude that the court properly permitted the
prosecutor to rehabilitate the second coconspirator to testify on
redirect examination. Defense counsel incorrectly impeached that
witness on cross-examination by establishing that he omitted a
material fact, i.e., his agreement to kill defendant’s ex-wife, when
he provided a statement to law enforcement authorities shortly after
defendant solicited him to kill defendant’s ex-wife (see generally
People v Victory, 33 NY2d 75, 88-89, cert denied 416 US 905). There
is no evidence in the record that the witness was specifically asked
during the subject interaction with authorities whether he agreed to
commit the murder, nor was it unnatural for that witness, who was
incarcerated at the time, to have omitted that detail from his
statements to the authorities (see People v Broadhead, 36 AD3d 423,
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                                                         KA 10-00616

424, lv denied 8 NY3d 919; People v Byrd, 284 AD2d 201, lv denied 97
NY2d 679; see also People v Savage, 50 NY2d 673, 679, cert denied 449
US 1016). Defendant failed to preserve for our review his challenges
to the jury instructions inasmuch as he did not raise those challenges
at trial (see People v Knapp, 79 AD3d 1805, 1807, lv denied 17 NY3d
807, 808), and we decline to exercise our power to review those
challenges as a matter of discretion in the interest of justice
(see CPL 470.15 [6] [a]).

     We reject the further contention of defendant that the court
erred in denying after a hearing his motion pursuant to CPL 330.30,
which was based on his alleged inability to hear the proceedings.
Defendant’s allegations concerning his hearing impairment were refuted
by the People’s witnesses at the hearing, who collectively described
his reaction to testimony and statements at trial and testified that
defendant never complained that he was unable to hear the proceedings.
“There is no basis to disturb the court’s fact-findings and
credibility determinations, which are entitled to great deference on
appeal” (People v Romano, 8 AD3d 503, 504, lv denied 3 NY3d 711).

     Defendant failed to preserve for our review his challenge to the
legal sufficiency of the evidence with respect to the intent element
of his crimes because he failed to move for a trial order of dismissal
on that ground (see People v Carncross, 14 NY3d 319, 324-325; People v
Gray, 86 NY2d 10, 19). In any event, defendant’s challenge lacks
merit. Viewing the evidence in the light most favorable to the People
(see People v Contes, 60 NY2d 620, 621), we conclude that the evidence
is legally sufficient to support the convictions (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 conclude that the verdict is not
against the weight of the evidence (see generally Bleakley, 69 NY2d at
495).

     We reject the further contention of defendant that he was denied
a fair trial based on various alleged errors. “Insofar as the
contention of defendant that he was denied effective assistance of
counsel involves matters outside the record on appeal, it must be
raised by way of a motion pursuant to CPL article 440” (see e.g.
People v Peters, 90 AD3d 1507, 1508; People v McKnight, 55 AD3d 1315,
1317, lv denied 11 NY3d 927). To the extent that defendant’s
contention is properly before us, we conclude that it lacks merit (see
generally People v Baldi, 54 NY2d 137, 147).




Entered:   March 16, 2012                       Frances E. Cafarell
                                                Clerk of the Court
