SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1017 

KA 13-02135 

PRESENT: CENTRA, J.P., PERADOTTO, CARNI, WHALEN, AND DEJOSEPH, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

SAMUEL MUSCARELLA, DEFENDANT-APPELLANT. 

 

THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (DEBORAH K. JESSEY OF

COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (NICHOLAS T. TEXIDO

OF COUNSEL), FOR RESPONDENT. 

 

Appeal from a judgment of the Erie County Court (Kenneth F. Case,

J.), rendered October 15, 2013. The judgment convicted defendant,

upon a jury verdict, of burglary in the first degree and predatory

sexual assault (two counts) and, upon a plea of guilty, of aggravated

harassment in the second degree (six 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 burglary in the first degree (Penal Law §

140.30 [3]) and two counts of predatory sexual assault (§ 130.95 [1]

[b]) and, upon a guilty plea, of six counts of aggravated harassment

in the second degree (§ 240.30 former [2]). By making only a general

motion for a trial order of dismissal, defendant failed to preserve

for our review his contention that the evidence is legally

insufficient to support the conviction (see People v Gray, 86 NY2d 10,

19). Furthermore, viewing the evidence in light of the elements of

the crimes of burglary in the first degree and predatory sexual

assault as charged to the jury (see People v Danielson, 9 NY3d 342,

349), we reject defendant’s contention that the verdict is contrary to

the weight of the evidence (see People v Bleakley, 69 NY2d 490, 495). 

Defendant failed to preserve for our review his contention that

County Court erred in failing to specify the dangerous instrument when

it charged the jury with respect to the predatory sexual assault

charge in count two of the indictment (see People v Corney, 303 AD2d

1006, 1007, lv denied 1 NY3d 570; People v Molling, 238 AD2d 915,

915). In any event, we note that the instruction given by the court

was consistent with the pattern Criminal Jury Instructions for

predatory sexual assault, which does not require the court to specify

the dangerous instrument (see CJI2d[NY] Penal Law § 130.95 [1] [b]).
-2- 1017 

KA 13-02135 

Contrary to defendant’s contention, Penal Law § 240.30 (former

[2]) is constitutional inasmuch as “its proscription is limited to

conduct” (People v Shack, 86 NY2d 529, 535). The concerns of the

Court of Appeals with respect to any proscription of speech in section

240.30 (1) (a) are therefore not relevant to this case (see generally

People v Golb, 23 NY3d 455, 467).

Defendant further contends that he did not receive a fair trial

because the court improperly denied his request for a missing witness

charge and improperly struck a portion of a police officer’s testimony

on hearsay grounds. That contention is without merit. 

“ ‘[D]efendant’s request for . . . a [missing witness] charge, made

after the close of proof, was untimely’ ” and, in any event,

“defendant failed to meet his burden of establishing his entitlement

to such a charge inasmuch as the uncalled witness’s testimony would

have been cumulative” (People v Arroyo, 111 AD3d 1299, 1300, lv denied

23 NY3d 960). With respect to the police officer’s testimony, even

assuming, arguendo, that the court improperly entertained the People’s

late hearsay objection, we conclude that any error is harmless

inasmuch as the court never instructed the jury that the testimony was

stricken. The evidence of guilt is overwhelming, and there is “no

significant probability that defendant would have been acquitted but

for the error” (People v Brooks, 26 AD3d 867, 867, lv denied 6 NY3d

892). 

We have examined defendant’s remaining contentions and conclude

that none requires modification or reversal of the judgment.

Entered: October 2, 2015 Frances E. Cafarell

Clerk of the Court