MULCAHEY, SHAWN A., PEOPLE v ( 2016 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1257
KA 15-01581
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, NEMOYER, AND SCUDDER, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
SHAWN A. MULCAHEY, DEFENDANT-APPELLANT.
SALVATORE F. LANZA, FULTON, FOR DEFENDANT-APPELLANT.
GREGORY S. OAKES, DISTRICT ATTORNEY, OSWEGO (ALLISON O’NEILL OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Oswego County Court (Donald E.
Todd, J.), rendered June 22, 2015. The judgment convicted defendant,
upon a jury verdict, of course of sexual conduct against a child 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 course of sexual conduct against a child in the
second degree (Penal Law § 130.80 [1] [b]). Contrary to defendant’s
contention, we conclude that the evidence is legally sufficient to
support the conviction (see generally People v Bleakley, 69 NY2d 490,
495).
We reject defendant’s contention that County Court erred in
allowing the People to present evidence of certain behavior by
defendant while he committed the charged crime. That evidence was
relevant to establish that defendant acted for the purpose of
gratifying his sexual desire, which is an element of course of sexual
conduct against a child in the second degree (see Penal Law
§§ 130.00 [3], [10]; 130.80 [1] [b]), and the prosecutor was “not
required to include in the bill of particulars matters of evidence
relating to how the [P]eople intend to prove the elements of the
offense charged” (CPL 200.95 [1] [a]).
We also reject defendant’s contention that the court abused its
discretion in limiting defense counsel’s questioning of prospective
jurors concerning prior criminal defense matters in which he was
involved, inasmuch as the court “must preclude repetitive or
irrelevant questioning” during voir dire (People v Jean, 75 NY2d 744,
745; see People v Steward, 17 NY3d 104, 110). Defendant failed to
preserve for our review his contention that he was prejudiced by the
-2- 1257
KA 15-01581
court’s facial expression during cross-examination of a prosecution
witness. Defendant made no further objection after the court granted
his request for a curative instruction, and the curative instruction
is therefore “deemed to have corrected the [alleged] error to . . .
defendant’s satisfaction” (People v Heide, 84 NY2d 943, 944).
Entered: December 23, 2016 Frances E. Cafarell
Clerk of the Court